Tuesday, June 29, 2010

Ninth Circuit Rules Lower Court Appropriately Considered Award of Attorney's Fees Under ERISA To Plaintiff After Grant of Summary Judgment Against Plaintiff's Claims

On June 24, 2010, the Ninth Circuit Court decided an ERISA case entitled
Simonia v. Glendale Nissan/Infinity.  Where a plaintiff's claim under ERISA 
has achieved "some degree of success on the merits," the plaintiff may seek
attoreny's fees under section 1132(g) under ERISA.

In this case, Plaintiff's claim for continuing disability benefits was dismissed on
summary judgment, and Plaintiff's "degree of success" amounted to Defendant
Hartford agreeing to dismiss its counterclaim for overpayment of benefits due
to retroactive SSDI payments received by Plaintiff, after Plaintiff informed
Hartford that the Social Security Administration subsequently retroactively
reduced his SSDI award.

The Ninth Circuit, relying on the recent Supreme Court case Hardt v.
Reliance Standard Life Insurance Co., 560 U.S. ___ (2010), concluded 
that in exercising its discretion to award attorney's fees, a trial court must apply
the factors enumerated in Hummell v. S.E. Rykoff & Co., 634 F.2d 446
(9th Cir. 1980), to guide the trial court's decision as to whether to award
attorney's fees a determination that the plaintiff has acheived "some degree of
success" under ERISA..
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Federal Court, Rather Than Arbitrator, Had Authority to Rule on Enforceability of Arbitration Clause In Employment Agreement

Last week the United States Supreme Court decided a case originating out of Nevada,
Rent-A-Center, West, Inc. v. Jackson, 561 U.S. ___ (2010).  An employee of Rent-A-
Center filed an employment discrimination suit in federal court, and the employer filed a
motion to compel arbitration.  On Certiorari from the Ninth Circuit, the Supreme Court ruled
that under the Federal Arbitration Act, codified in Title 9 of the United States Code (FAA),
the courts could decide the enforceability of an arbitration clause in an employment agreement 
that stated the arbitrator must decide the enforceability of the agreement as a whole,  
whereas only the arbitrator could decide whether the employment agreement as a whole
was enforceable.

In opposing the motion to compel arbitration, Jackson argued the arbitration clause was unconscionable under Nevada law.  The federal trial court dismissed, stating the arbtration clause prevented it from deciding Jackson's unconscionable argument. Jackson appealed to the Ninth Circuit, which reversed, stating the courts decide the threshold question of whether the agreement was enforceable, affirmed the trial court's finding against Jackson on part of his unconscionable argument, and remanding for the trail court to decide the remainder of Jackson's unconscionable argument.

Justice Scalia delivered the opinion, and pointed out that Jackson's challenge was not to the validity of the agreement but to his manifestation of intent to the arbitration clause based on his unconscionability agrument.  Additionally, Jackson's briefs argued the entire agreement was invalid.  Based on those observations, Scalia concluded that Jackson's challenge was to the validity of the agreement as a whole versus the validity of the arbitration clause, and reversed the Ninth Circuit's decision.

Relying on First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995), Justice Stevens dissented, reasoning that the arbitration clause at issue did not "clearly and unmistakeably" evince Jackson's assent to arbitration because of his unconscionability argument.  Stevens characterized Scalia's opinion as a "'fantastic' and likely erroneous decision" because it went beyond what the parties asked the Court to decide.  Stevens also asserted that the majority opinion expanded the holding in Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967), where the challenge was to the validity of the agreement due to fraud in the inducement, and not to the embedded arbitration clause.  Thus, Stevens would have affirmed the Ninth Circuit's decision.

Friday, June 18, 2010

A Copyright Primer for Photographers

Under the Copyright Act of 1976, any copyrightable work (such as a photograph) created on or after January 1, 1978, is automatically copyright-protected.  It is not necessary to formally register a photograph, although it is still an option.  Copyright protection lasts for the life of the author plus 70 years, thanks, primarily, to lobbying efforts by the Disney company after the death of Walt Disney.  A photographer has exclusive rights to the use of her photograph, with two notable exceptions.
1) All copyrights are subject to “fair use.”  The term fair use can be unclear, but basically includes use as an educational tool, news commentary or parody.
2) If a photograph is a “work made for hire,” authorship and copyright belong to the employer.  But for this to apply, the photographer must either be an employee, or she must be an independent contractor who has agreed in writing that the photograph is part of a collective work (such as a book) and is a “work made for hire.”
If a photographer gives her permission, another person may create a “derivative work” that revises, elaborates or modifies the photograph to create an original work, such as a drawing of a photograph.  The new work must contain substantial changes from the original.  The new author then has a copyright to the additions, changes or new material added to the photograph, but the original photographer retains the copyright in the original photograph.
For more detailed information, or to see how copyright laws apply to works created before 1978, go to www.copyright.gov.  For information about the Nevada Camera Club, go to http://nevadacc.org
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