July 2017 Visa Bulletin Update

Posted in Immigration

The Department of State (DOS) released the July 2017 Visa Bulletin. The final action dates for Chinese and Indian nationals in the employment-based, first preference (EB-1) category remain unchanged with cutoff dates of Jan. 1, 2012.  It is expected that this EB-1 retrogression for China and India will last until October 2017 when the new fiscal year starts. The cutoff date for all other nationals in the EB-1 category remains current.

The cutoff date for worldwide chargeability in the EB-2 category remains current but for mainland China and India, where there is a slight advancement of three weeks to March 22, 2013, for China and July 22, 2008, for India.

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An Update from the National Indian Gaming Association’s Annual Legislative Summit

Posted in Gaming

Last week, the National Indian Gaming Association (NIGA) held their annual Legislative Summit in Washington, D.C.  The agenda was packed with Senate and House congressional members and officials from President Trump’s administration reporting on the state of current affairs.

Chairman of the National Indian Gaming Commission, Jonodev Chaudhuri.

A highlight of the NIGA summit was an announcement by the chairman of the National Indian Gaming Commission (NIGC), Jonodev Chaudhuri. Chairman Chaudhuri lauded the Indian gaming industry as “gaming grown from self-determination soil” and released the 2016 revenue figures for tribal government gaming operations – totaling $31.2 billion – an overall increase of 4.4 percent.

Putting those numbers in historical context, Chairman Chaudhuri declared “Indian gaming works in Indian country because of Indian country.” He was clear to frame the success of Indian gaming as an outgrowth of compliance with the purpose and principles of the Indian Gaming Regulatory Act (IGRA) – to enhance tribal self-sufficiency, economic development, and self-determination.

Chaudhuri also discussed the NIGC’s recent series of consultations throughout Indian country as part of its ongoing commitment to meaningful consultation with tribal nations and in performance of its regulatory responsibilities. Specifically, he said NIGC plans to determine the scope of any grandfathering provision under the proposed Class II gaming system regulations in the near future. Under the IGRA, Class II machines, which are used for bingo, lotto, pull tabs, and other such games, do not require a tribal-state compact or sharing the tribe’s gaming revenues with the state. Class II gaming is particularly useful to tribes in states that refuse to negotiate gaming compacts.

Chaudhuri stated the current Class II gaming system regulatory discussion draft incorporates concerns from Indian country and other stakeholders to achieve a balance between the risk sought to be mitigated and the preservation of the integrity of Indian gaming. He announced that the NIGC will continue to meet with the NIGA Tribal working group.

In closing, Chairman Chaudhuri briefly reported on other ongoing NIGC consultation efforts dealing with (1) nonbinding guidance for Class III minimum internal control standards (MICS); (2) rural outreach; (3) developing a strong workforce through training; (4) management contract regulations and procedures; (5) technical standards for mobile gaming devices; and (6) modifications to fee regulations. He expects NIGC to respond to those efforts in Fall 2017.  However, Chaudhry said to expect a press release very soon on a revamp of the environmental “categorical exclusion” process for management agreements under NIGC’s recently published “Protocol for Categorical Exclusions Supplementing the Council on Environmental Quality Regulations Implementing the Procedural provisions of the National Environmental Policy Act for Certain National Indian Gaming Commission Actions and Activities.”

SCOTUS Declares Lanham Act’s Prohibition Against Registering Disparaging Trademarks Unconstitutional

Posted in GT Alert, Intellectual Property & Technology

On June 19, 2017, the U.S. Supreme Court issued its decision in Matal v. Tam, affirming the Federal Circuit and holding that the Lanham Act’s prohibition against registering disparaging trademarks is unconstitutional because it “is not ‘narrowly drawn’ to drive out trademarks that support invidious discrimination.”

Background

The Lanham Act is a federal law that governs the use and registration of trademarks in the United States. Portions of the Lanham Act tell the Trademark Office how to examine trademarks. One rule is that the Trademark Office cannot approve proposed trademarks that are confusingly similar to already-registered trademarks. Another rule is that the Trademark Office cannot approve proposed trademarks that are immoral, scandalous, or disparaging. Most of these rules have existed since at least 1946, when the law was enacted.

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Sixth Circuit Refuses To Stop Collective Action Notice To Employees with Individual Arbitration Agreements

Posted in Labor & Employment

A Sixth Circuit opinion filed this week reaffirms what experienced Fair Labor Standards Act (FLSA) attorneys have known for some time:  when it comes to employer arbitration programs, they are not always the panacea that employers (and their lawyers) believe them to be. In Taylor v. Pilot Corp. et al., Case No. 16-5326, a plaintiff-employee filed a FLSA collective action against her employer. As is typical, she promptly asked the court to authorize the sending of notice of the lawsuit to other “similarly situated” employees, asking if they wanted to participate, or “opt in,” to the lawsuit. The defendant employer opposed, arguing in part that numerous putative collective action members were party to arbitration agreements that prevented them from participating in class, collective, or group actions. The district court nevertheless authorized sending the notice – including to those employees who had agreed to arbitrate any disputes they had with the defendant on an individual basis. The Sixth Circuit declined to disturb the district court’s decision to send notice to employees with individual arbitration agreements, holding that it lacked jurisdiction to do so because conditional certification decisions under the FLSA, unlike class certification decisions under Rule 23, are not subject to interlocutory appeal. The net effect is a ruling that arguably shifts the court’s role, tacitly authorizing broad notice programs in FLSA collective actions to include employees who admittedly may not be able to participate in the litigation due to an agreement to arbitrate.

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The DOJ’s Evolving View of the Interplay Between the Federal Arbitration Act and the National Labor Relations Act

Posted in Gaming, Labor & Employment

Employers in the gaming and hospitality arena are eagerly awaiting the results of the upcoming changes to the legal landscape that are expected to emerge from a business-oriented administration. These employers have long tried to reduce the costs and length of litigation, particularly in the context of wage and hour claims, by requiring employees to arbitrate work-related disputes on a bilateral, rather than collective or class-wide, basis.

The Trump administration has already begun to change course regarding the legality of class action waivers, which is affecting employers in dozens of cases. In a rather expected move, the Department of Justice now says it no longer believes that class action waivers in arbitration agreements infringe upon workers’ Section 7 rights under the National Labor Relations Act (NLRA). On June 16, the Department of Justice filed an amicus brief with the Supreme Court in NLRB v. Murphy Oil USA, Inc., which oral arguments on this issue are scheduled for October. The DOJ’s brief argues that, “Nothing in the NLRA’s legislative history indicates that Congress intended to bar enforcement of arbitration agreements like those at issue here…And while the National Labor Relations Board’s (“NLRB” or “Board”) reading of ambiguous NLRA language is entitled to judicial deference, the Board’s analysis of the interplay between the NLRA and the FAA is not.” The DOJ acknowledges that it previously filed a petition for a writ of certiorari on behalf of the NLRB, but that after the change in administration, it reconsidered the issue and has reached the opposite conclusion.

The saga started in January 2012 with the controversial ruling in D.R. Horton, Inc., in which the Board ruled that agreements between an employer and its individual employees interfere with the employees’ right to engage in concerted activities if the agreements require arbitration of work-related disputes on a bilateral rather than collective or class wide basis. This issue has created a split among the circuit courts. On review, the Fifth Circuit rejected the Board’s D.R. Horton analysis and held that enforcement of the challenged arbitration agreement would not deny a party any statutory right because the use of class action procedures is not a substantive right under the NLRA. The Seventh and Ninth Circuits have disagreed. In Epic Systems Corporations v. Jacob Lewis, the Seventh Circuit affirmed a district court’s ruling that an arbitration agreement requiring employees to waive the right to participate in a class proceeding was invalid and unenforceable under the NLRA.  In a similar case, the Ninth Circuit reversed a district court’s order granting an employer’s motion to compel bilateral arbitration. The Ninth Circuit held that the NLRA gives employees a “right to pursue work-related legal claims together” and that the employer had violated that right by requiring employees to resolve their legal claims in separate arbitration proceedings. Most recently, the NLRB’s General Counsel reaffirmed the Board’s prior decision in D.R. Horton, Inc., notwithstanding the Fifth Circuit’s ruling rejecting that decision, by issuing a complaint against Murphy Oil USA, Inc. for requiring its employees to waive their rights to commence or participate in a class action.

In October, the Supreme Court will address this split among the circuits and hear Murphy Oil, Epic Systems, and the Ninth Circuit case. Notably, on June 16, the NLRB announced that the Acting Solicitor General of the United States has authorized the NLRB to represent itself at the hearing. The General Counsel’s office, headed up by Richard F. Griffin, Jr. until his term ends in November, will represent the Board. It is unclear whether the DOJ will face off with the General Counsel, given its new take on this issue.

It is currently unclear how the U.S. Supreme Court will decide this issue in October, or what effect the Department of Justice’s new position will have on its ultimate ruling. Either way, it is likely that employers will soon have new guidance on whether class waivers in arbitration agreements infringe upon workers’ Section 7 rights. Shortly after the hearing, President Trump is expected to nominate a new General Counsel whose views will certainly align with the business-friendly Trump administration. While we wait for the Supreme Court’s ruling and at least until Griffin’s term ends, employers should continue to consult counsel when considering including class waivers in their arbitration agreements.

Eleventh Circuit: Obtain a Copyright Registration before Initiating Litigation

Posted in Intellectual Property & Technology

According to U.S. copyright law, an original work of authorship receives copyright protection from the time the work is created in a fixed form. However, when can a copyright owner sue an alleged infringer for copyright infringement?  Is it sufficient that a copyright owner merely filed an application for registration with the U.S. Copyright Office or must the copyright owner wait until the Copyright Office either issues or refuses to issue a registration certificate? On May 18, 2017, the Eleventh Circuit widened the circuit split in its ruling, holding that the Copyright Office must register or refuse to register the copyright prior to the filing of a copyright infringement suit.

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Whack-A-Mole in Ransomware – Suggestions for Fighting the Evolving Problem

Posted in Cybersecurity

As you may have heard, a serious cyber security ransomware attack called WannaCry surfaced on Friday, May 12, and has spread across the globe. It has been described as a cyber pandemic. The initial attacks shut down hospitals in the U.K. and also Asia. Ransomware refers to malware that locks or threatens to lock a user’s computer systems unless a sum of money is paid.  Ransomware, like most forms of cyber attacks, constantly morphs in response to successfully deployed defenses. As defenders succeed in blocking a pathway, the malware pops up in a morphed version, requiring further changes in defensive tactics. Dealing with ransomeware is just like playing Whack-A-Mole, but with serious potential consequences. In today’s world, where attackers are often very well-funded, it is important to work together with others to mount a successful defense.

As the WannaCry ransomware is tackled, new variations are emerging. Even though the initial WannaCry Malware attack was thwarted when the kill switch was discovered, new more sophisticated variants are emerging that are more difficult to address. The WannaCry malware appears to be focusing on human vulnerability, namely the tendency of untrained users to open unexpected documents or click on unknown links, so a first step in addressing the attack starts at the ground level –by educating ourselves and our employees to detect the signs of malware attacks. Getting the word out can help others be prepared. In the event of an attack, it is important to respond quickly as the attacks are serious and ransomware continues to morph and spread.

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The FTC ‘Educates’ Celebrities & Social Media Influencers on its Endorsement Rules

Posted in FTC, GT Alert

As the power of Instagram and other social media platforms as marketing tools rises, so does the dollar figure of contracts between brands and the social media influencers (celebrities, athletes, reality stars, etc.) they use to endorse their products – some contracts are reported to be in the seven-figures. Couple this with the influencers’ ability to reach millions of consumers and the Federal Trade Commission (FTC) is taking notice. The FTC continues to keep a close eye on advertising activities by social media influencers as well as the brands themselves but historically, the FTC’s enforcement has been limited only to brands. However, in a much anticipated move, the FTC recently sent 90 letters to various influencers (including 45 celebrities) and brands “educating” them on its advertising disclosure requirements.

The FTC monitors advertising activities pursuant to the Federal Trade Commission Act, which charges the FTC with, among other things, preventing “unfair or deceptive acts or practices,” including advertising that is false or misleading in any material way. The FTC published the Guides Concerning the Use of Endorsements and Testimonials in Advertising (also known as the Endorsement Guides) to provide guidance regarding how the FTC evaluates certain endorsements and testimonials in advertising.

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