May 2016 Article in Beauty Industry Reports: Cosmoprof Bologna Sets Records
May 2016 Article in Beauty Industry Reports: Cosmoprof Bologna Sets Records
CK&E regularly works with clients to identify and protect their intellectual property both in the United States and abroad, and participates in industry conferences like INTA’s Annual Meeting and others to stay abreast of the developing issues affecting the firm’s clients.
The DTSA will provide businesses with more effective new tools to protect their sensitive information from misappropriation. In the context of trade secrets, misappropriation is generally considered the acquisition of hidden information through some improper means . The broadly structured language of the DTSA extends its protection to “all forms and types of financial, business, scientific, technical, economic, or engineering information” so long as (1) the owner has taken reasonable steps to keep the information secret and (2) the information derives its value from that secrecy. The DTSA largely tracks the concepts of trade secrets that have long existed in most states. But under the DTSA, plaintiffs will be able to bring claims for misappropriation of trade secrets in federal court.
Previously, trade secrets have been an outlier in the world of intellectual property. Unlike copyright, patent and trademark claims, which receive the wider benefit and protection of federal court jurisdiction, trade secret claims have mostly been litigated in state court. The problem with this has been that, given the diffuse and global nature of business and commerce, state courts are often not the best venue for intellectual property claims. If a misappropriation occurs across state or national borders, a federal court is better suited to address such jurisdictional conflicts.
To gain access to the DTSA, and federal court jurisdiction, all that is required is that the “trade secret is related to a product or service used in, or intended for use in, interstate or foreign commerce.” This is generally a very low threshold, as most products and services these days are used or intended for use in at least interstate commerce – only the most localized of businesses would not be able to meet this minimal requirement.
The DTSA will confer on trade secret holders a greater ability to pursue misappropriation beyond the borders of the United States, and can even pursue remedies before the International Trade Commission. In addition, a secondary benefit gained from access to the federal court system is a potential for more uniform decisions and precedent than the more disparate and varied state courts decisions.
Another interesting development that the DTSA will usher in relates to injunction and damages. Injunctions are often sought in trade secret cases to prevent the information at issue from being disclosed. Previously, under the Uniform Trade Secrets Act (UTSA), which almost all states have adopted in some form or another, the injunction would end when the trade secret ceased to exist or after an amount of time necessary to stop any potential commercial advantage being gained from a misappropriation. The DTSA however contains no such limitation, which presumably will give courts more discretion in applying an extended injunction. Also, where the UTSA allows for double damages in cases of “willful and malicious misappropriation”, the language of the DTSA has upped this to treble damages.
Perhaps the biggest tool in the DTSA tool belt is the ability to seek ex parte civil seizures. What this means is that a plaintiff can, without giving a defendant notice, seek the seizure of property if the plaintiff can demonstrate that the defendant, or someone working in concert with the defendant, is likely to “destroy, move, hide, or otherwise make such matter inaccessible to the court”. This type of ex parte seizure is a powerful new tool that will likely allow trade secret holders to better combat harm associated with a misappropriation. And being a powerful tool, it may be subject to misuse among competitors.
Conkle, Kremer & Engel attorneys stay current on developments that may be important to their clients concerned about commercial and intellectual property issues. If you have questions about the DTSA or other aspects of trade secret or intellectual property protection, we would be glad to hear from you.
Conferences held in the Governor’s Council Room featured presentations by Nancy McFadden (Executive Secretary to Governor Edmund G. Brown), Graciela Castillo-Krings (Deputy Legislative Secretary to Governor Edmund G. Brown, Jr.), Dr. Meredith Williams (Deputy Director of Safer Products and Workplaces Program Director, Department of Toxics & Substance Control), and Elise Rothschild (Deputy Director of the Hazardous Waste Management Program, Department of Toxics & Substance Control). John joined teams of PCPC staff and member companies who met with legislative offices to discuss the economic impact of the industry and legislation pending before the California legislature. The day’s events were capped with a reception at which PCPC staff and members were joined by California State Legislators.
Conkle, Kremer & Engel is a proud and active member of the Personal Care Products Council. CK&E attorneys are glad to lend their legal expertise to the PCPC and its member companies by participating in PCPC conferences and industry advocacy efforts..
California Lobby Day represents a unique opportunity for industry leaders to meet with legislators including Leadership, key Committee Chairs and members of the Legislative Women’s Caucus, state officials, and their staff members and to engage in open discussions about legislative and regulatory issues affecting the personal care products industry. The day is expected to include briefings in the Governor’s Office by the executive department personnel and meetings with staff in the offices of members of the State Legislature, as well as a reception for members of the California Legislature, personnel from the Office of Governor Brown, and PCPC members and staff. Among those with whom John is expecting to meet are Nancy McFadden (Executive Secretary to Governor Brown); Carol Monahan-Cummings (Office of Environmental Health Hazard Assessment); Meredith Williams (Deputy Director of Safer Consumer Products and Workplaces Program, Department of Toxic Substances Control); and Panorea Advis (Director of the Governor’s Office of Business and Economic Development).
Conkle, Kremer & Engel is proud to be an active member of the Personal Care Products Council. Over the years, CK&E has provided legal expertise to the PCPC and its member companies by presenting at conferences organized by the PCPC on legal and regulatory matters, as well as representing many PCPC member companies. CK&E has also been a frequent sponsor of conferences organized by the PCPC and has participated in numerous events hosted by the PCPC.
The FEHA regulatory amendments require all affected employers to have written policies prohibiting workplace discrimination and harassment. The policies must apply to prohibit discrimination and harassment by co-workers, who are made individually liable for their own violations, and by third parties such as vendors in the workplace. The regulations demand that the written policy list all currently-protected categories protected under FEHA: Race, religion, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, and military or veteran status. Prohibited “sex discrimination” includes discrimination based on pregnancy, childbirth, breastfeeding and related medical conditions. Interestingly, the regulations also prohibit discrimination against employment applicants holding a special California driver’s license issued to persons without proof of legal presence in the United States. It is not yet clear how this will work in conjunction with the employer’s existing Federal obligation to confirm eligibility for employment.
The employer’s written policy must specify a confidential complaint process that satisfies a number of criteria. Workplace retaliation for making good faith complaints of perceived discrimination or harassment is prohibited. The written policy must be publicized to all employees, with tracking of its receipt by employees. If 10% of the employer’s work force speaks a language other than English, the written policy must be translated to that language.
Further, the new regulations attempt to resolve a number of uncertainties about who is protected, specifying that both males and females are protected from gender discrimination, and requiring that transgender persons be treated and provided facilities consistent with their gender identity. There are many other changes, such as a new entitlement to four months for pregnancy leave that is not required to be taken continuously. If an employer has more than 50 employees, there are additional requirements, such as periodic sexual harassment prevention training for supervisors.
Employers operating in California are well advised to review their policies and practices, and to consult with qualified counsel regarding changes that may be required. Conkle, Kremer & Engel attorneys help clients remain compliant with laws, regulations and case developments affecting employers in California.
Cosmoprof Bologna came to a successful close on March 21. The overall show statistics are not available yet, but participants in the California Pavilion experienced brisk business. The California Pavilion this year expanded to two islands with 18 exhibitors, and booths were often crowded with interested buyers. The CK&E lounge at the center of the California Pavilion buzzed with deal negotiations, and CK&E attorneys Mark Kremer and Eric Engel were glad to be able to lend their assistance to help participants expand their global reach.
Organizer Cesar Arellanes of California Trade Alliance commented that California Pavilion participants reported meeting or exceeding their goals for the show, expanding and strengthening their international business.
CK&E attorneys advise clients to prepare for major trade shows, particularly foreign shows, by verifying that they have taken all appropriate steps to protect their trademarks, trade dress and other valuable intellectual property, before problems arise. To help one well-prepared client, Mark Kremer successfully initiated an immediate takedown of counterfeit products being sold in another hall. CK&E attorneys attend major beauty industry trade shows to help protect clients’ brands, to keep current on trends, and to assist clients with the full range of legal skills needed to grow their businesses internationally.
Thirty-five California Pavilion participants began the event with a dinner to share ideas and stories. The group was glad to be able to use the occasion to celebrate the special birthday of Emilio Smeke, of Daily Concepts and AfterSpa. The California Pavilion has the unique position of being the only State Pavilion in the Hall of Country Pavilions, with a choice position adjacent to the USA Pavilion. The prominence of the California Pavilion is a fitting tribute to the strength and growth potential of the California cosmetics business and the leadership of Cesar Arellanes and Jake Rubenstein of California Trade Alliance.
The California State Bar has the staid mission of regulating the admission of attorneys and investigating assertions of attorney misconduct. Yet in November 2015, the State Bar found itself charged with wrongful employment retaliation after it fired one of its top managers, John Noonen. Noonen asserted that the termination was retaliatory because, just a few weeks earlier, he submitted a 40-page internal complaint against the State Bar’s top attorney for allegedly failing to properly investigate complaints against the president of the State Bar. The State Bar has denied Noonen’s retaliation allegations and has said that Noonen’s position was eliminated as part of a cost-saving effort.
Less than two months later, the same types of claims led to a sizeable jury verdict against a completely different business run by famed yoga guru Bikram Choudhury. Choudhury made his fortune teaching yoga instructors his techniques and allowing graduates to operate yoga studios that feature a specific yoga sequence performed in a 104-degree room. In January 2016, a Los Angeles jury found that Choudhury sexually harassed his former legal advisor and wrongfully fired her for investigating others’ claims of sexual discrimination and assault against him. Choudhury asserted he had good cause to fire his legal advisor because she was not licensed to practice law in California. The jury first ordered Choudhury and his yoga business to pay $924,000 in compensatory damages, and the next day the jury upped the ante with a further award of $6.4 million in punitive damages.
In each of these recent cases, employees alleged that their bosses improperly “retaliated” against them for investigating workplace misconduct. Most employers and employees know that laws exist to protect employees from wrongful discrimination and harassment. The same laws also provide that employers cannot punish or “retaliate” against employees for making complaints about other potentially wrongful employment conduct, such as discrimination or harassment, or for participating in workplace investigations about such potential wrongful employment conduct.
“Retaliation” is prohibited by the same federal laws that prohibit employment discrimination based on race, color, sex, religion, national origin, age, disability and gender. “Retaliation” can take many forms, including termination, demotion, suspension or other employment discipline against the employee for engaging in protected activity, such as reporting perceived employer discrimination or other misconduct. Owing to its broad scope, retaliation is a claim commonly raised by disgruntled or terminated employees. In fact, according to the federal Equal Employment Opportunity Commission (“EEOC”), retaliation is the most common basis of discrimination claims in EEOC cases.
These cases illustrate some of the many circumstances in which employment issues can lead to litigation against a wide variety of employers. Conkle, Kremer & Engel regularly advises employer and individuals on workplace issues and the ramifications of retaliation and harassment claims so that all involved can take steps to resolve conflicts in a meaningful, efficient way. When circumstances do not do not allow a non-litigated solution, CK&E attorneys litigate and arbitrate employment disputes including retaliation claims, whether the claims are asserted individually or as a class action.