by eclewis | Jun 24, 2015 | IP Law
Colorado recently passed a law aimed at reducing the amount of so-called “patent trolling.” Generally, “patent troll” is used as a derogatory term to describe non-practicing entities, which are entities that own a patent on something but do not use it themselves (they may license it to others or do nothing at all with it other than enforce their patent rights against others). Such entities may “troll” other companies that are allegedly using that patent without permission by sending them threatening letters that if they do not pay up a licensing fee for the patent, that they will take them to court over it.
There have been various cases where businesses have shut down or struggled after receiving these letters or paying the licensing fees. This has become an issue of particular concern in the tech industry where very broad patents have been issued, that arguably never should have been or at least been more narrow. You can check out these two This American Life podcasts on the subject if you want to learn more: When Patents Attack! Part 1; Part 2. However, more specifically, this law was motivated by cases where businesses have received threatening letters without much information as to who they were coming from or what the basis was for the alleged infringement.
HB-1063 aims to combat this by allowing Colorado’s Attorney General to go after people who send threatening letters in bad faith to companies asking for money over alleged uses of their patents by the company. The act would apply to instances such as where the sender of the letter falsely claims that litigation has been filed against the recipient or related persons, where there is no reasonable basis in fact or law for the allegations (such as if the sender does not own the patent in question or have any authority to license or sell it). The act can also come into play when the sender does not provide enough information to the recipient. Required information would generally include:
- Identity of the person sending the letter
- The number issued by the USPTO of the patent in question
- Factual allegations regarding the specific areas that the recipient’s activities (products/services/technology) infringed the patent in question
Note that this law should not prevent anyone who legitimately has the rights to the patent and/or its licensing, unless you fail to send adequate information to alleged violators or send such letters without a reasonable basis. This means that so-called patent trolling will not cease to exist, but it should make allegations of patent infringement more substantive, clear, and transparent. This should also reduce abusive and more questionable instances of patent trolling.
It will be interesting to see if this law has the desired effect of both reducing the instances of “patent trolling” in Colorado and encouraging technology and knowledge-based companies to begin and grow in Colorado. From a legal perspective, it will also be interesting to see if this law will have any problems with preemption by federal law, basically meaning that this state law could be held invalid by the federal courts because it is incongruent with federal law (this legal concept is based on the Constitution’s Supremacy Clause).
If you have questions about intellectual property issues, please contact the Law Office of E.C. Lewis, P.C., home of your Denver Business Attorney, Elizabeth Lewis, at 720-258-6647 or email her at elizabeth.lewis@eclewis.com.
by eclewis | Jun 17, 2015 | Business News
On Monday, June 15th, the Colorado Supreme Court issued its ruling in Coats v. Dish, LLC, this was a high profile case in Colorado symbolizing the clash between Colorado law permitting medical marijuana use, Federal law’s criminal approach to all marijuana use, and employers’ anti-drug policies banning marijuana use. All three of these issues came together in this case between Dish Network and Mr. Coats, a former employee of the company.
Mr. Coats is a quadriplegic who tested positive for marijuana while he was employed as a customer service representative by Dish Network. He defended his use by saying that it was done after work for medical reasons and that it was legal in the state of Colorado, and he stated that he would continue to use medical marijuana. He was subsequently fired, and Mr. Coats filed a wrongful termination lawsuit against Dish Network, claiming that his medical marijuana use was protected by Colorado’s “lawful activities statute.” C.R.S. 24-34-402.5 full text available here.
The relevant part of this law for this case was a portion of section 1:
“(1) It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours…”
This law is a small exception to the general rule that if you are an at-will employee, then you can be fired by your employer for any or no reason at any time without direct legal consequences. This law protects employees from engaging in lawful activities that they engage in off the employer’s premises during nonworking hours. Note however that there are some exceptions even to this exception where employers may still fire for lawful, off duty conduct, but those were not at issue in this case.
Some news reports covering this story have imprecisely framed the issue. They claim that the CO Supreme Court was ruling on whether or not employees of businesses can use marijuana “off-duty.” This portrayal suggests that anyone who is employed and uses medical marijuana can no longer use it because of the ruling. This is not quite right.
What the CO Supreme Court was actually deciding was whether or not Colorado’s “lawful activities statute,” discussed above, protects employees who use medical marijuana from being fired for using it off the premises during nonworking hours. Ultimately, the CO Supreme Court determined that the word “lawful” in the law is not limited to Colorado law only. Instead, they held that it meant that it must be lawful under Colorado and Federal law, and that since all marijuana use is criminal under Federal law, then medical marijuana use would not be classified as “lawful” under the statute and would not be covered by the statute.
You may be thinking about the recent actions by the Federal government not to intervene in states where marijuana use is legal and how that related to this decision. The CO Supreme Court addressed this in a footnote:
“The Department of Justice has announced that it will not prosecute cancer patients or those with debilitating conditions who use medical marijuana in accordance with state law. Similarly, in December 2014, Congress passed the Consolidated and Further Continuing Appropriations Act that prohibited the Department of Justice from using funds made available through the Act to prevent Colorado and states with similar medical marijuana laws from “implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” Consolidated and Further Continuing Appropriations Act, 2015, Pub. Law No. 113-235, § 538, 128 Stat. 2130, 2217 (2015). However, marijuana is still a Schedule I substance, and no medical marijuana exception yet exists in the CSA. As such, medical marijuana use remains prohibited under the CSA.”
Ultimately, this case means that if an employer fires you for using medical marijuana, the “lawful activities” statute does not protect you, so it is up to the employer to decide if medical marijuana use is acceptable. In practice, this may mean that, employed persons cannot use medical marijuana, but legally speaking, it is up to the employer to make that decision. As a Colorado business, this means that it is up to you to decide how you want to address medical marijuana use by employees, and it appears that this decision has not restricted your authority to manage employee drug use any differently than before this case was decided.
If you have questions about employment laws relating to your business, please contact the Law Office of E.C. Lewis, P.C., home of your Denver Business Attorney, Elizabeth Lewis, at 720-258-6647 or email her at elizabeth.lewis@eclewis.com.
by eclewis | Jun 10, 2015 | Business News
Here in the 10th Circuit, where Colorado is located, it was previously considered a requirement by the courts that discrimination claims under Title VII based on a religious accommodation required the employer to have actual knowledge of the religious accommodation request from the employee or prospective employee. In practice, this would mean that an employee or applicant would have to ask the employer for such accommodation before they could be liable for discriminating against them for this reason. At first glance, this sounds like it makes sense, but in practice, things are more complex. The Supreme Court recently reversed the 10th Circuit’s approach in an 8-1 opinion in the case of E.E.O.C. v. Abercrombie & Fitch Stores, Inc.
You may have heard of some of these cases in the news, as there have been a few. The gist of the facts from these different cases is that an applicant wearing a headscarf, as part of their religious beliefs, was not hired by Abercrombie, despite being qualified. The reason for this was because of the “Look Policy” that Abercrombie has for all of its employees, which prohibits “caps” to be worn by employees (there is no definition for caps in the policy but Abercrombie states this covers anything covering up a person’s head). Note however, that Abercrombie has since altered their Look Policy to allow for such religious headwear.
In the recent case, there was no discussion between the applicant and Abercrombie regarding her wearing the headscarf, other than that she was aware that Abercrombie had a “Look Policy” (but no details of the policy were discussed). The applicant never asked if the headscarf was okay and Abercrombie never asked the applicant if they would be wearing the headscarf on the job. Abercrombie simply assumed that the applicant would be wearing it, and did not hire her, since it would violate the Look Policy. The applicant won in district court, but the 10th Circuit ruled in favor of the employer. The 10th Circuit held that an applicant must communicate the need for a religious accommodation to an employer in order for the employer to be liable for discrimination. On review, the Supreme Court held instead that the need (or presumed need) for a religious accommodation only has to be a motivating factor for their decision not to hire the applicant, and that no actual knowledge of the need for such accommodation is necessary.
What does this mean exactly? No actual knowledge is required? Basically speaking, what the court seems to be telling us is that there is a clear distinction between knowledge and motive, and that employment decisions can be motivated by something, despite the employer not knowing with complete certainty as to its truthfulness. Here’s some insight from the Court’s opinion:
“Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.”
Here’s an example provided by the Court:
“…suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the…employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.“
What does this mean for businesses? It is simple, do not discriminate based on an applicant‘s (or employee’s) religious beliefs, or even based on religious beliefs that you think they have (even if you don’t know for sure). If you suspect that an applicant (or employee) will need a religious accommodation, and you make an employment decision motivated by this, then you have discriminated against that person under Title VII.
If you have questions about how to go about making employment decisions for your business in compliance with the law, please contact the Law Office of E.C. Lewis, P.C., home of your Denver Business Attorney, Elizabeth Lewis, at 720-258-6647 or email her at elizabeth.lewis@eclewis.com.
by eclewis | Jun 3, 2015 | Business News
The next part of our series on Due Diligence will discuss Employee Due Diligence.
Now if the business you are looking to buy does not have any employees then this may be a simple process, but it may not be as simple as you would think. For example, the business that you are looking to buy may not have any employees per se, but they may instead utilize independent contractors, which may in fact be more properly classified as employees. This could bring up some significant liability and operational concerns going forward, so you will want to have these relationships carefully scrutinized by yourself and a knowledgeable attorney. This way you will know what you are getting into with this business purchase.
Some of the documents you should be looking for are:
- Employment contracts
- Independent contractor agreements
- Non-Disclosure, Confidentiality, Intellectual Property and Non-Compete agreements
- Any employment or Human Resources policies or handbooks
- Documents showing any employee benefit plans such as (health insurance, retirement, bonuses, etc.)
All of these documents can bring up a variety of issues. You need to think about whether or not you want to continue using the same contractors and employees going forward. It may be a good idea for business continuity and transition, but it may also be a good time to make a change as well, especially if you have significant changes in mind or want to bring in key new staff of your own. The enforceability and terms of these agreements can have a substantial impact on the value and continuation of the business, and you need to be sure that you are getting a fair deal with the purchase.
Beyond the documents themselves, it may be a good idea to gauge employee feelings regarding an acquisition and possible change in management. If employees are not happy about such a large change, it could be a disaster in the making to take buy the business. Think carefully and don’t let the excitement of being an entrepreneur cloud your judgment. Trust experienced professional advisors to help you with deals of this significance.
If you need assistance with legal help and/or document drafting for your business sale, please contact the Law Office of E.C. Lewis, P.C., home of your Denver Business Attorney, Elizabeth Lewis, at 720-258-6647 or email her at elizabeth.lewis@eclewis.com.
by eclewis | May 27, 2015 | Business News
Continuing as part of our series on Due Diligence, we have already outlined Financial Due Diligence, and this time we will take a look at due diligence regarding issues that are more legal in nature.
As part of the due diligence process, it is important that you have the legal documents of the business reviewed, just like you would the business’ financial statements. This can help identify irregularities or potential problems with the acquisition. In addition to documents to review, it may also be a good idea to interview the owners and employees of the company to see if what happens in practice with the business lines up with its legal documentation.
Some of the documents to review include:
- Articles of Incorporation/Organization, Bylaws/Operating Agreement, or any other equivalent document (like a Partnership Agreement)
- Minutes of meetings as well as any stock or other buy-sell agreements between owners regarding their ownership interests
- Documents showing capitalization of the company (meaning who are the stock or ownership interest holders)
- Major contracts the company has with its suppliers, distributors, etc.
- This can also include employment contracts
- Insurance policies benefiting the company
- Any intellectual property rights, licenses, trade secret information etc.
- Documents relating to any lawsuits against the company
These documents will indicate how the company has been formed, as well as who all of the owners are, what types of restrictions have been placed on the company or its owners, and other key legal issues. This can help determine if there will be any complications regarding the transaction, as well as if the business has been run properly and in accordance with the legal documents. Additionally, having this type of documentation reviewed can help understand the business better, which can also help in determining a good valuation of the company. Finally, having these legal documents reviewed can also provide insight into existing or potential liabilities the business is exposed to, so you can understand what you are getting yourself into by purchasing the business.
If you need assistance with legal help and/or document drafting for your business sale, please contact the Law Office of E.C. Lewis, P.C., home of your Denver Business Attorney, Elizabeth Lewis, at 720-258-6647 or email her at elizabeth.lewis@eclewis.com.
