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Northwest Business Litigation Blog

Resource for in-house counsel, business executives, human resource managers and others who monitor litigation and legal issues affecting Northwest USA businesses.
By Ater Wynne LLP

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Last Entry: November 20, 2009 at 18:52:02

Washington State?s new reseller permit system begins January 1, 2010

Posted on November 20, 2009
Currently Washington businesses that purchase items for resale may self-issue resale certificates to avoid paying sales tax. Beginning January 1, 2010 reseller permits issued by the Washington State Department of Revenue ("DOR") will be required in order to purchase items...

First tribally-owned Wall St. investment firm

Posted on November 17, 2009
After years of economic development focused on resource extraction and gaming, the Lower Brule Sioux Tribe, a federally-recognized tribe located in South Dakota, recently purchased the Westrock Group, making the company the first fully Tribally-owned investment firm...

Ater Wynne employment law seminar: The top ten of 2009

Posted on November 13, 2009
Join Ater Wynne's Labor and Employment Group for a seminar on the year's top 10 developments in employment law The seminar will be held at Bridgeport Brewing Company on Thursday, December 10, 2009, 8 to 11 am. More details are...

U.S. Supreme Court to choose test for a corporation's "principal place of business"

Posted on November 12, 2009
Among the grounds for subject matter jurisdiction in federal court is diversity jurisdiction, which is available when the plaintiff and defendant are citizens of different states. A corporation's citizenship is defined as its "principal place of business," and if a...

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EEOC issues new anti-discrimination poster

Posted on November 06, 2009
The EEOC has long required most employers to provide information to employees about federal employment discrimination laws that prohibit job discrimination based on characteristics including race, sex, and religion. To help with compliance, the EEOC for some time has provided...

Oregon Court of Appeals remands punitive damages against FedEx

Posted on November 05, 2009
Last week the Oregon Court of Appeals affirmed a jury's verdict that FedEx defrauded one of its independent contractors, but remanded on the ground that $7 million in punitive damages was excessive. In Wieber v. FedEx Ground Package System, Inc.,...

New and increased fees in Oregon state courts starting October 1

Posted on September 29, 2009
The Oregon legislature is boosting state court filing fees and adding new fees in response to the current budget crisis. Among the new charges effective October 1 are fees "for each additional party named" in a complaint, and for filing...

Ninth Circuit narrowly interprets Computer Fraud and Abuse Act

Posted on September 24, 2009
The federal Computer Fraud and Abuse Act ("CFAA") creates a civil remedy against those who access information on a computer without authorization, or in a manner that exceeds authorized access. The Ninth Circuit last week gave a narrow reading to...

Join us for a seminar on employee benefits, September 17 at Bridgeport Brewing

Posted on September 14, 2009
Ater Wynne's next Roundtable session, entitled "20/20 Benefits Planning for 2010," will be held on September 17 at Bridgeport in the Pearl. For more information, go here.

Homeowner may sue for negligent construction, Oregon Court of Appeals holds

Posted on September 13, 2009
A homeowner who discovers construction defects may be unable to pursue the builder on a contract theory if too much time has passed and the statute of limitations has run. And, even if the statute of limitations on a tort...

Proposed changes to federal time computation rules

Posted on August 22, 2009
The U. S. Supreme Court has approved proposed amendments on the computation of time under the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure. The amendments will take effect on December 1, 2009, unless Congress unexpectedly enacts legislation to...

Retaliatory firing does not support a wrongful termination claim, Oregon Court of Appeals holds

Posted on August 21, 2009
Earlier this week, the Oregon Court of Appeals affirmed that a plaintiff alleging retaliatory termination may not maintain a common law claim if an adequate remedy is available under either a federal or state statute. In Deatherage v. Johnson, the...

Oregon Supreme Court affirms limitation on wrongful termination claim

Posted on August 21, 2009
Yesterday the Oregon Supreme Court held that a terminated employee has no wrongful termination claim after being fired for making internal complaints about unlawful and unethical sales practices. In Lamson v. Crater Lake Motors, Inc., the Court affirmed the Court...

"Emergency" bills get an early start

Posted on August 12, 2009
Hundreds of bills passed the Oregon legislature this session with an "emergency" designation, meaning that they became, or will become, effective earlier than January 1, 2010. The Oregon State Bar Professional Liability Fund posted this list summarizing a number of...

IRS allows "safe harbor" plan cutbacks

Posted on August 06, 2009
Recently, the IRS proposed amendments to the 401(k) "safe harbor" plan regulations. A "safe harbor" plan is one that complies with certain mandatory employer contribution, vesting and notice requirements. Safe harbor plans are not subject to many of the discrimination...

Managers found independently liable for unpaid wages under the FLSA

Posted on August 06, 2009
So you thought only a corporation could be liable for corporate debts? Not when the debt is unpaid wages. In Boucher v. Shaw, the Ninth Circuit last week confirmed that individuals may be liable for unpaid wages as "employers" under...

Congress to consider dialing back federal pleading standards

Posted on July 24, 2009
In the past two years, the U.S. Supreme Court has made it harder for plaintiffs to state a claim in federal court. While FRCP 8 requires that a complaint must contain only a "short and plain statement of the claim...

Federal minimum wage increases to $7.25

Posted on July 23, 2009
Effective July 24, 2009, the federal minimum wage increases to $7.25 per hour. This is the last of three wage increases imposed under the Fair Minimum Wage Act of 2007. The federal minimum wage has not caught up to Oregon,...

Ninth Circuit approves preemptive motion to deny class certification

Posted on July 22, 2009
In a case of first impression, the Ninth Circuit ruled earlier this month in Vinole v. Countrywide Home Loans, Inc., CV-07-00127-DMS, that a defendant may file a preemptive motion to deny class certification before plaintiffs file a motion to certify...

The Northwest Business Litigation

Posted on July 13, 2009
The Northwest Business Litigation blog is a resource for in-house counsel, business executives, human resource managers and others who monitor litigation and legal issues affecting Northwest businesses. The litigation group of Ater Wynne LLP hosts the blog...

Ninth Circuit limits recall remedy in trademark case

Posted on July 10, 2009
In a trademark infringement case, a product recall may be available as a remedy when defendant has sold products improperly displaying plaintiff's trademark. Last week the Ninth Circuit Court of Appeals held that a court may order a product recall...

Business method patents ride Bilski to the Supreme Court

Posted on July 02, 2009
In 1998, the Court of Appeals for the Federal Circuit (CAFC), affirmed the patentability of business methods in State Street Bank v. Signature Financial Group, prompting a flood of business method applications into the U.S. Patent and Trademark Office...

Oregon legislature approves ban on cell phone use while driving

Posted on June 26, 2009
On June 24, the Oregon Legislature passed a bill banning the use of any "mobile communication device" while driving unless the device is in hands-free mode. The ban, which applies to cellular phones and text messaging devices, is subject to...

Oregon courts strictly enforce filing fees for motions

Posted on June 25, 2009
The Oregon State Bar's Professional Liability Fund today warned members that some circuit courts no longer accept for filing motions and responses to motions unless they are accompanied by the appropriate filing fees. According to the PLF, Multnomah and Washington...

Effective invention disclosures save clients money and more

Posted on June 20, 2009
The client rapidly dictates, draws, and gestures, the details of her invention haphazardly spilling forth in all their problem-solving glory. Across the table, her attorney scribbles furiously to capture every word. Later in the quiet of his office, the attorney...

Attorneys not subject to sanctions under the Fair Debt Collection Practices Act

Posted on June 19, 2009
The Ninth Circuit Court of Appeals last week addressed the scope of sanctions for bad faith claims under the Fair Debt Collections Practices Act ("FDCPA"). A California plaintiff brought suit against two companies for violations of the FDCPA. The plaintiff...

EEOC votes to approve ADAAA regulations

Posted on June 18, 2009
On June 16, 2009, the EEOC approved proposed regulations intended to conform with changes made by the ADA Amendments Act (ADAAA) of 2008. The ADAAA makes it easier for an individual seeking protection under the ADA to establish that he...

Ninth Circuit puts Internet domain name registry in dispute

Posted on June 15, 2009
In an opinion issued earlier this month, Ninth Circuit Judge Mary M. Schroeder applied "antitrust statutes drafted in the late 19th century" to reinstate a lawsuit alleging wrongful acts in a very 21st century business: the registry for ".com" and...

Ninth Circuit on standing to seek plan benefits

Posted on June 08, 2009
"Standing" is the legal doctrine that requires a plaintiff to have a sufficient stake in a controversy before seeking judicial remedies. Standing is often an issue in ERISA litigation, where benefit plans may seek to dismiss a participant's claims for...

Ater Wynne launches Family-Owned Business Blog

Posted on May 29, 2009
Members of Ater Wynne LLP's Family-Owned Business Practice Group announce a new blog for stakeholders of family-owned businesses and their advisors. Read more about the Family-Owned Business Blog here.

Patent defense: properly document your inventive activities

Posted on May 21, 2009
The United States remains nearly unique in the world in following a ?first to invent? rule. An inventor can obtain priority over all ostensible prior art by proving an earlier date of invention, as well as diligent reduction to practice....

U.S. Supreme Court increases pleading burden for plaintiffs

Posted on May 20, 2009
Memo to plaintiffs in federal court: You'll have to plead facts to support your claim in order to survive a motion to dismiss. A complaint reciting the elements of a claim and amounting to a series of legal conclusions is...

Non-Indian subject to tribal jurisdiction, says Ninth Circuit

Posted on May 15, 2009
On May 14, 2009, a Ninth Circuit Court of Appeals panel in Elliott v. White Mountain Apache Tribe reaffirmed that non-Indian litigants must exhaust available Indian tribal court remedies before pursuing an action in Federal court to challenge the Tribe's...

Oregon Supreme Court adopts a new approach to statutory interpretation

Posted on May 06, 2009
The Oregon Supreme Court issued an opinion last week that refines the judiciary's approach to interpreting statutes. Oregon courts may now consider a statute's legislative history, even where its text and context are unambiguous. In State v. Gaines, the Court...

Washington State expands domestic partnership law

Posted on May 02, 2009
On April 23, 2009, SB 5688, an expanded version of the original State Registered Domestic Partnership (SRDP) Act. was delivered to Governor Christine Gregoire, who is expected to sign it into law. The new law expands on previous domestic partnership....

Snoqualmie Tribe members win banishment case in federal court

Posted on May 02, 2009
In a legal first, tribal members have been victorious in Federal court challenging a tribal banishment action. Rob Roy Smith and Steven Kennedy of Ater Wynne represented the tribal members, all of whom were one-time elected members of the Snoqualmie....

Proposed Oregon House Bill would criminalize misclassification of workers

Posted on April 22, 2009
Worker misclassification has been a hot topic in Oregon for years. In 2006, the legislature changed the statutory definition of independent contractor to clarify the criteria that must be met to qualify in Oregon. Athough the current law imposes a...

21st Annual Indian Law CLE in Seattle: May 8, 2009

Posted on April 21, 2009
The Washington Bar Association's Indian Law Section will host the 21st Annual Indian Law Section CLE on May 8, 2009 at 1111 Third Avenue, 30th Floor Conference Center, Seattle, Washington. Topics include: An update on recent cases, Indian tribal trust...

Ninth Circuit rules Fair Labor Standards Act applies to Indian business

Posted on April 20, 2009
The Ninth Circuit today concluded that the Fair Labor Standards Act (FLSA) applies to an Indian-owned smoke shop on trust land on the Puyallup Reservation, and that the Secretary of Labor has authority to enter the business to audit its...

LA Times on ideological battles in the Ninth Circuit

Posted on April 20, 2009
The Los Angeles Times yesterday published this article about the influence of conservative judges on the Ninth Circuit Court of Appeals, including what observers say is strategic use of dissents from denial of en banc rehearing. The article notes that...

DoL and IRS issue guidance on Stimulus Bill's COBRA subsidy

Posted on April 09, 2009
In February, I wrote about employers' new obligations under the Stimulus Bill's COBRA Subsidy. Since then, the Department of Labor has published a variety of additonal information for employers on their responsibilities, including several model notices to qualified beneficiaries...

Ninth Circuit voids class action waiver in a consumer contract

Posted on April 01, 2009
Last week in Chalk v. T-Mobile USA, the Ninth Circuit Court of Appeals applied Oregon law to invalidate a contractual class action waiver. The court held that, where individual damages from breach of a consumer contract are likely to be...

U.S. Supreme Court dismisses appeal of Oregon tobacco punitive damages award

Posted on March 31, 2009
Mayola Williams' products liability case has completed its third journey to the U.S. Supreme Court, as the Court today dismissed Philip Morris' appeal of a $79.5 million punitive damages award. Williams' husband died in 1997 of cancer after years of....

Oregon Court of Appeals approves 4-to-1 ratio for punitives in debt collection case

Posted on March 30, 2009
Earlier this month, the Oregon Court of Appeals approved a reduction of a jury's award of punitive damages for violation of the Oregon Unlawful Debt Collection Practices Act. In Lithia Motors, Inc. v. Yovan, the jury found for the buyer...

Budget problems disrupt operations at the Oregon Court of Appeals

Posted on March 27, 2009
Budget cuts are forcing significant changes at the Oregon Court of Appeals, according to a statement released this week by Chief Judge David Brewer. Due to staffing reductions, the Court of Appeals will curtail its April oral argument calendar and...

Funding allows state courts to open Fridays

Posted on March 13, 2009
Oregon state courts are closed today, but will be open Fridays starting next week, following an agreement by legislators and Chief Justice Paul DeMuniz to shift additional funds to court operations. Last month Justice DeMuniz had announced that budget cuts...

Next Employment Roundtable event is March 19, don't miss it!

Posted on March 12, 2009
It's not too late to register for the upcoming Ater Wynne Roundtable event on March 19 titled "The First 100 Days: What Recent Changes in Regulations and the Economy Mean for Employers." Topics will include a discussion of the new...

Federal law does not pre-empt state law tort claim, U.S. Supreme Court holds

Posted on March 04, 2009

Budget cuts force Oregon courts to close on Fridays

Posted on February 27, 2009

Rehearing of California wage law case that may impact Northwest employers

Posted on February 25, 2009
The Ninth Circuit recently issued an order withdrawing its 2008 opinion in Sullivan v. Oracle Corp., which applied California wage laws to out-of-state employees doing limited work in California. The court certified these three questions to the California Supreme Court:...

U.S. Supreme Court throws future tribal land acquisitions into doubt

Posted on February 24, 2009
Today, the U.S. Supreme Court issued a decision in Carcieri v. Salazar that might dramatically limit the ability of the United States to take land into trust for certain Indian tribes. Trust status is important as it allows tax and...

Stimulus Bill's COBRA subsidy creates new obligations for employers

Posted on February 23, 2009
The economic stimulus package signed into law by President Obama on February 17, 2009, amends the Consolidated Economic Budget Reconciliation Act (COBRA), and creates new and immediate obligations for employers. The new law provides a subsidy to employees of 65%...

Stimulus Bill provides opportunities in Indian Country

Posted on February 20, 2009
The American Recovery and Reinvestment Act of 2009, otherwise known as the the Stimulus Bill, provides tribal governments and Indian-owned businesses access to more than just the $2.5 billion in tribal-specific appropriations. Tribes and their business partners can take advantage...

Out-of-state lawyer gets a pass in federal court

Posted on February 19, 2009
A claim of unauthorized practice of law figured into a dispute over attorney fees resolved this week by the Ninth Circuit. In a lawsuit for breach of a severance contract filed in federal court in California, plaintiffs sought to recover...

Ninth Circuit orders rehearing of biggest-ever class action certification

Posted on February 17, 2009
The Ninth Circuit last week ordered en banc rehearing of the landmark class certification in Dukes v. Wal-Mart. The order comes two years after a three-judge panel approved the largest class in history, consisting of 1.5 million current and former...

Opportunities for Public Comment on OFLA Regs

Posted on February 12, 2009
BOLI will be accepting comments on the new federal Family Medical Leave Act (FMLA) regulations that went into effect on January 16, 2009, to determine whether to amend Oregon Family Leave Act (OFLA) regulations on points where they now differ...

U.S. Supreme Court weighs in on beneficiary designations and ERISA plans

Posted on February 07, 2009
Divorce can be a painful event for retirement plans as well as for the parties involved. A recent U.S. Supreme Court case illustrates some of the difficulties that Plan administrators face from strict statutory requirements and forgetful plan participants...

President Obama signs workplace-related legislation into law

Posted on January 29, 2009
On January 29, 2009, President Obama signed into law the Lilly Ledbetter Fair Pay Act, expanding the time frame in which workers can sue for discrimination they have experienced based on gender, race, national origin or religion. The legislation is...

Update your policies now to comply with ADAAA

Posted on January 29, 2009
The February 2009 issue of Washington Healthcare News includes an article by blog contributor Kathy Feldman, who practices employment law in Ater Wynne's Seattle office. The article addresses the ADA Amendments Act of 2008, which significantly expands the original ADA...

Ninth Circuit limits tribal court commercial jurisdiction

Posted on January 22, 2009
In its first tribal civil jurisdiction case since last year's U.S. Supreme Court ruling in Plains Commerce Bank (see our blog entry about the case), a panel of the Ninth Circuit Court of Appeals in Philip Morris v. King Mountain...

BOLI to hold off on issuing new OFLA regulations

Posted on January 20, 2009
The new federal Family Medical Leave Act (FMLA) regulations went into effect on Friday, January 16, 2009. FMLA is applicable to employers with 50 or more employees. Oregon employers with 25 or more employees are covered by the state Oregon...

Ninth Circuit interprets Oregon's anti-SLAPP statute, dismisses appeal

Posted on January 15, 2009
Oregon is one of a number of states that have enacted "anti-SLAPP" statutes designed to prevent certain types of abusive lawsuits. SLAPP stands for "strategic lawsuit against public participation," and the anti-SLAPP statute creates a procedure for dismissing at an...

No private right of action under Sarbanes-Oxley section 304, Ninth Circuit holds

Posted on December 24, 2008
In a case originating in the District of Oregon, the Ninth Circuit recently held there is no private right of action under Section 304 of the Sarbanes-Oxley Act, which provides for the forfeiture of bonuses and profits when corporate officers...

Ater Wynne on the move to the Pearl

Posted on December 11, 2008
On December 15 Ater Wynne's Portland office will relocate to the new Lovejoy Building in the Pearl District, at NW 14th and Lovejoy St. See details here.

Ater Wynne among Most Admired Companies in Oregon

Posted on December 10, 2008
Ater Wynne LLP is one of the top three professional services firms in Oregon, according to the Portland Business Journal. See details of the 2008 Most Admired Companies award here.

U.S. Supreme Court again wrestles with Oregon punitive damages verdict

Posted on December 04, 2008
When it agreed to review the judgment in Philp Morris v. Williams for a third time, the U.S. Supreme Court asked whether the Oregon Supreme Court properly affirmed the punitive damages based on a state law defect in Philip Morris's...

Egyptian Goddess and design patent infringement: The Federal Circuit quashes a judicial innovation

Posted on December 03, 2008
For the past two decades, finding infringement of a design patent -- a patent protecting the ornamental rather than utilitarian features of an invention -- required satisfying two distinct tests. However, a recent en banc Federal Circuit opinion in Egyptian...

U.S. Supreme Court to hear argument in Oregon punitive damages case

Posted on December 02, 2008
On Wednesday, the U.S. Supreme Court will hear oral argument in an appeal from the Oregon Supreme Court. In Philip Morris USA, Inc. v. Williams, a Multnomah County jury awarded $79.5 million in punitive damages -- equal to 97 times...

California wage laws may affect Northwest employers

Posted on December 01, 2008
Employers beware: you may be required to comply with California wage and hour laws if your employees perform work in California. On November 6, 2008, the Ninth Circuit Court of Appeals held in Sullivan v. Oracle, Corp. that California's Labor...

Judge Mosman offers a new perspective on oral argument

Posted on November 24, 2008
Judge Michael W. Mosman, one of Oregon's federal district court judges, has written an article titled "Five Oral Argument Tips - For Judges." Here, courtesy of the blog How Appealing, is Judge Mosman's article, originally published in the October 2008...

Oregon Supreme Court finds no right to jury trial for enforcement of settlement agreement

Posted on November 19, 2008
In McDowell Welding & Pipefitting, Inc. v. U.S. Gypsum Co. et al., the Oregon Supreme Court recently held that specific enforcement of a settlement agreement taking the form of an executory accord is an equitable claim, as opposed to a...

Ninth Circuit extends tribal sovereign immunity to casino employees

Posted on November 18, 2008
The Ninth Circuit issued a fascinating Indian law ruling on Friday, November 15, in a case named Cook v. AVI Casino Enterprises. In Cook, plaintiff sued a Tribal casino enterprise organized as a Tribal corporation under Tribal law, and two...

Oregon Court of Appeals finds landlord not liable for assault by tenant

Posted on November 17, 2008
Last week in Miller v. Tabor West Investment Co., LLC et al., the Oregon Court of Appeals held that a landlord is not liable under a theory of negligence for an off-premises assault committed by one tenant upon another tenant...

Apparent authority supports warranty liability, Oregon Supreme Court holds

Posted on November 06, 2008
The Oregon Supreme Court today addressed the scope of an agent's apparent authority in a case involving failed stucco siding. In Taylor v. Ramsay-Gerding Construction Co., a building owner expressed concerns during construction about the performance of the stucco exterior...

Business method patents redux: The Federal Circuit speaks

Posted on November 03, 2008
Messers. Bilski and Warsaw and their patent attorneys are scratching their heads now that the Court of Appeals for the Federal Circuit (CAFC) has tossed out their business method patent applications. Bilski and Warsaw are inventors of a commodities trading...

Ninth Circuit outlines attorney liability for securities fraud

Posted on October 27, 2008
Today the Ninth Circuit Court of Appeals issued an opinion stating that an attorney who undertakes to make representations to prospective purchasers of securities can be liable for securities fraud under federal law if the representations turn out to be...

Federal Vaccine Act does not preclude civil remedy, Oregon Court of Appeals holds

Posted on October 13, 2008
Last week, the Oregon Court of Appeals held the federal Vaccine Act, which creates a special program for compensation for a vaccine-related injury or death, does not bar family members of a person who has suffered a vaccine-related death from...

Oregon Supreme Court: City not liable for erroneous statement to business owner

Posted on October 06, 2008
The Oregon Supreme Court held last week that a government body cannot be liable for negligently providing incorrect information. In Loosli v. City of Salem, the court concluded that a used car dealer can't recover damages resulting from the City...

Controversial medical testimony is admissible, Oregon Court of Appeals holds

Posted on October 03, 2008
Oregon courts should not exclude scientific expert testimony simply because it is controversial or arguably invalid, according to an opinion issued this week by the Court of Appeals. In Kennedy v. Eden Advanced Pest Technologies, plaintiff claimed he suffered from...

Government-Mandated health benefits vs. ERISA, Round 5

Posted on September 30, 2008
We previously discussed an ordinance adopted by the city of San Francisco that requires employers to provide their employees with health benefits costing at least certain amounts or to pay those amounts to the city to fund the city's public...

Update on ADA Amendments Act

Posted on September 29, 2008
On September 25, 2008, President Bush signed S. 3406, the ADA Amendments Act of 2008. You can read our earlier coverage of the new law here.

New Federal Rule of Evidence could reduce litigation costs

Posted on September 22, 2008
Parties engaged in litigation in federal courts could see cost savings thanks to a new rule affecting pre-trial discovery. On September 19, President Bush signed into law S. 2450, which adopts new Federal Rule of Evidence 502 concerning discovery of....

House unanimously passes ADA amendments

Posted on September 20, 2008
Following the Senate's passage of S. 3406 - the Senate version of the ADA Amendments Act of 2008 - the US House of Representatives unanimously passed the bill without change on September 18. President Bush is expected to sign the...

Ninth Circuit fine tunes the pleading standard for securities fraud

Posted on September 19, 2008
Last week, the Ninth Circuit, in South Ferry LP v. Killinger, limited the use of the "core operations inference" to meet the heightened pleading standard of the Private Securities Litigation Reform Act in alleging securities fraud by a corporation's management...

Oregon Supreme Court opens gate to scientific expert testimony

Posted on September 18, 2008
This week the Oregon Supreme Court reversed the Court of Appeals and allowed the admission of a medical expert's testimony on the causation of an alleged injury. In Marcum v. Adventist Health System/West, plaintiff had received an injection of contrast...

Senate passes amendments to Americans with Disabilities Act

Posted on September 13, 2008
On September 12, the U.S. Senate passed S. 3406, the Senate version of the ADA Amendments Act of 2008. The bill is intended to overturn a number of U.S. Supreme Court cases that narrowed the scope of protection afforded by...

Oregon Court of Appeals reduces punitive damages in employment case

Posted on September 12, 2008
This week the Oregon Court of Appeals struck down a jury award of punitive damages 30 times the amount of compensatory damages, in a case where the harm to plaintiff was economic and not physical. In Hamlin v. Hampton Lumber...

Washington L&I issues new regulation on pay for travel time

Posted on September 10, 2008
In response to the Washington Supreme Court's decision in Stevens v. Brink?s Home Security, which defined the parameters for paid travel time in Washington, the Department of Labor and Industries (L&I) committed to updating its administrative policy to address the...

Online video-sharing service not liable for users' copyright infringement

Posted on September 01, 2008
In an opinion issued last week, a federal district court in California dismissed a lawsuit against Veoh Networks, Inc., a self-described "Internet Television Network," which provides software and a website enabling the sharing of user-submitted video content over the Internet...

eBay seller can't be sued in buyer's home state, Ninth Circuit holds

Posted on August 22, 2008
A non-resident seller of a single item in an eBay auction can't be sued for breach of contract in the buyer's home state, according to a case decided this week by the Ninth Circuit Court of Appeals. In Boschetto v....

Denial of petition to compel arbitration in Oregon must be appealed within 30 days

Posted on August 14, 2008
The Oregon Court of Appeals held yesterday in Snider v. Production Chemical Manufacturing, Inc., that an order denying a petition to compel arbitration must be appealed within 30 days of the order. In that case, the party seeking to arbitrate...

California Supreme Court rejects use of most non-competition agreements

Posted on August 12, 2008
Last week, in Edwards v. Arthur Andersen, a unanimous California Supreme Court held that the state legislature has restricted the ability of employers to prevent employees from working for a competitor. As a result of the ruling, noncompetition agreements that...

Washington Department of Labor & Industries to issue policy on 'drive-time' wages

Posted on August 06, 2008
On August 8, 2008, the Washington Department of Labor & Industries will issue a draft policy addressing the uncertainy created by the 2007 Washington State Supreme Court decision in Stevens v. Brink's Home Security regarding travel time in company vehicles...

Corporate Directors Are Not Employees After All

Posted on August 04, 2008
Almost exactly a year after we reported the Court of Appeals? decision that payments to corporate directors are "wages" for the purpose of unemployment taxation, the Oregon Supreme Court reversed that decision. The Supreme Court held "that the legislature did...

New business radio show features Ernie Bootsma of Ater Wynne

Posted on August 01, 2008
August 1, 2008 - Ernie Bootsma, chair of Ater Wynne's Emerging Business Group, will be the featured guest today on the innaugural show of StartUp Portland, a new business radio program for entrepreneurs, private investors and "those interested in getting...

Will the Employee Free Choice Act undermine free choice?

Posted on July 31, 2008
Last year we reported on the Employee Free Choice Act (EFCA), the proposed pro-union legislation that would abolish secret ballot elections in favor of union card checks by employees. Although the bill failed in the Senate, it remains a priority...

Waiver or breach of arbitration agreement must be resolved by court, Ninth Circuit holds

Posted on July 25, 2008
Once parties have entered into an arbitration agreement, the courts have a limited role in adjudicating a subsequent dispute. While a court may generally decide whether a valid agreement to arbitrate exists, most other issues must be resolved by the....

Rest and meal break class actions just got tougher in California

Posted on July 23, 2008
While wage and hour class actions continue to be popular, a California court just issued an opinion likely to put at least a slight damper on rest and meal break class actions. In Brinker Restaurant Corporation v. Hohnbaum (Cal. Ct....

Federal minimum wage increases July 24, 2008

Posted on July 23, 2008
This is a reminder that, effective July 24, 2008, the federal minimum wage will increase from $5.85 to $6.55 per hour. This is the second of three increases scheduled under the Fair Minimum Wage Act of 2007. The next increase...

IRS requires reporting for stock options

Posted on July 21, 2008
The Internal Revenue Code for some time has required corporations to provide written statements to employees regarding transfers of stock pursuant to an exercised option or under an Employee Stock Purchase Plan (ESPP). Effective for 2007, Congress amended the Code...

Oregon Court of Appeals applies doctrine of ratification to enforce contract

Posted on July 15, 2008
Last week, in Lemley v. Lemley, the Oregon Court of Appeals held that a settlement agreement to transfer an interest in real property is enforceable even though the agreement was executed by an attorney who lacked written authority to enter...

U.S. Supreme Court limits tribal court jurisdicition

Posted on June 26, 2008
The U.S. Supreme Court yesterday issued an important 5-4 decision addressing the scope of tribal court jurisdiction. At issue in Plains Commerce Bank v. Long Family Land and Title Co. was whether a tribal court could exercise jurisdiction over a...

US Supreme Court addresses conflicts of interest in ERISA plans

Posted on June 23, 2008
ERISA provides that an individual denied benefits under an employer benefit plan may challenge the denial in federal court. Last week, the US Supreme Court addressed the standards for review when the entity that administers the plan -- usually an...

Employers face additional burden in defending age claims

Posted on June 19, 2008
Today the U.S. Supreme Court made it harder for employers to defend themselves against a claim of age discrimination in Meacham v. Knolls Atomic Power Laboratory. Knolls, a government contractor that contracted with the Navy and Department of Energy, was...

Oregon Court of Appeals: Party who claims no contract existed can't recover attorney fees

Posted on June 17, 2008
Contracts often provide for an award of attorney fees to one of the parties in the event of litigation relating to the contract. Under Oregon statutory law, a prevailing party in such a lawsuit is entitled to recover its attorney...

No "class of one" constitutional protection for government employees

Posted on June 16, 2008
On June 9, in a case involving a former State of Oregon employee, the U.S. Supreme Court ruled that "class of one" equal protection under the 14th Amendment does not protect state government employees against firings for arbitrary reasons. Chief...

U.S. Supreme Court gives expansive reading to civil RICO liability

Posted on June 15, 2008
In Bridge v. Phoenix Bond & Indemnity Co., the United States Supreme Court last week held that a plaintiff bringing a civil RICO claim predicated on mail fraud may recover for injury from the mail fraud, even if plaintiff did...

U.S. Supreme Court extends patent exhaustion to method patents

Posted on June 12, 2008
The U.S. Supreme Court on Monday addressed the scope of the patent exhaustion doctrine, holding that it applies to method patents. It has long been recognized that the holder of a patent in an apparatus cannot claim patent rights in...

Deferred compensation plans must comply with new law by year end

Posted on June 11, 2008
By the end of this year, the IRS requires every "deferred compensation plan" to comply with Internal Revenue Code Section 409A. What is a deferred compensation plan? The definition covers a number of employment arrangements, such as severance agreements, stock...

$79.5 million punitive damage award against Philip Morris returns to the U.S. Supreme Court

Posted on June 09, 2008
The U.S. Supreme Court has agreed to review for the third time the $79.5 million in punitive damages that a Multnomah County jury awarded in a tobacco products liability case. The court today accepted review in Williams v. Philip Morris...

Genetic Information Non-Discrimination Act signed into law

Posted on June 03, 2008
On May 21, 2008, President Bush signed into law the Genetic Information Non-Discrimination Act ("GINA"). GINA prohibits employers from discharging, refusing to hire, or otherwise discriminating against employees on the basis of genetic information. It also applies to employment agencies...

Falling book prices doom antitrust lawsuit against Amazon and Borders

Posted on May 29, 2008
A customer can't sue two retailers for illegal collusion unless he can show that he suffered actual damages, according an opinion issued this week by the Ninth Circuit. In Gerlinger v. Amazon.com, Inc., plaintiff challenged an agreement under which the...

Medical Facility: Cure thyself. Look for symptoms of employment discrimination

Posted on May 22, 2008
The June 2008 issue of Washington Healthcare News includes an article by blog contributor Kathy Feldman, who practices employment law in Ater Wynne's Seattle office. The article addresses employment discrimination, including the six protected classes of employees, and ways to...

Oregon Supreme Court gives employers a break

Posted on May 15, 2008
The Oregon Supreme Court handed Oregon employers a huge victory today, finding that employees have no private right of action for missed breaks under Oregon wage and hour laws. The Court of Appeals in Gafur v. Legacy Good Samritan Hospital...

Oregon Court of Appeals OKs contract claim despite delayed business registration

Posted on May 13, 2008
Under Oregon statutory law, at 648.135(1), a person operating under an assumed business name cannot file suit on behalf of that business unless the assumed name is registered with the state. The Oregon Court of Appeals held last week that,...

Portland jury awards $304.6 million in shoe trademark case

Posted on May 08, 2008
Earlier this week a jury ordered Payless Shoesource, Inc. to pay more than $304 million in damages to Adidas America, Inc., for trademark infringement. The federal court jury in Portland found that 267 Payless shoe styles infringe on Adidas' trademarks...

Oregon Supreme Court denies smoker class action for "medical monitoring"

Posted on May 02, 2008
In a unanimous opinion with one concurrence, the Oregon Supreme Court yesterday upheld the dismissal of a large class action of smokers who sought injunctive relief for "medical monitoring, smoking cessation and education." Plaintiffs are some 400,000 smokers who have...

Another antitrust verdict hits forest-products firm

Posted on April 30, 2008
A year after the U.S. Supreme Court tossed out a $79 million antitrust verdict against it, Weyerhaeuser has this week been hit with another antitrust judgment by a jury in Portland - this time in the amount of $28 million,...

Employers face litigation over tip policies

Posted on April 29, 2008
Proper handling of employee tips has emerged as a hot issue in employment litigation. Last month, a San Diego superior court judge ruled that Starbucks Corp. must pay more than $100 million to compensate thousands of baristas after allowing supervisors...

Seventh Circuit rejects liability for craigslist housing ads

Posted on April 11, 2008
Interpreting the law protecting providers of interactive computer services from liability for content provided by others, the Seventh Circuit recently held that the online service craigslist may not be liable under the Fair Housing Act for discriminatory housing ads appearing...

Washington enacts domestic violence leave for victims and family

Posted on April 09, 2008
The Washington State Legislature passed a new law, effective April 1, 2008, which allows victims of domestic violence, sexual assault, or stalking to take reasonable or intermittent leave from work, paid or unpaid, to take care of legal or law...

I Tube, You Tube, We All Tube: Avoiding liability for user-generated content

Posted on April 08, 2008
Thanks to the rapid growth in the public's desire and ability to communicate through the internet, publication of User Generated Content ("UGC") has exploded. Companies such as YouTube and MySpace are among the businesses that have capitalized on the distribution...

Article: "Tips and Strategies for Defending Indian Tribal Government IRS Audits"

Posted on April 07, 2008
Ater Wynne's Rob Roy Smith recently authored "Tips and Strategies for Defending Indian Tribal Government IRS Audits," published in the March 2008 issue of the Washington State Bar Association's Indian Law newsletter. The article discusses the recent change in the...

Communications Decency Act doesn't shield on-line service, Ninth Circuit holds

Posted on April 05, 2008
The Ninth Circuit held yesterday that Roommates.com is not immune under the Communications Decency Act ("CDA") from liability for discriminatory content on its site. The en banc panel in Fair Housing Council of San Fernando Valley v. Roommates.com held that...

Court permanently enjoins patent rule changes

Posted on April 02, 2008
Last fall, a federal district court in Virginia preliminarily enjoined the US Patent and Trademark Office from enacting a suite of new rules. The rules would have limited the number of claims and continuation applications an applicant could file, imposed...

U.S. Supreme Court finds Federal Arbitration Act states exclusive grounds for review of arbitration awards

Posted on March 25, 2008
A split U.S. Supreme Court ruled yesterday that the grounds for vacatur and modification of arbitration awards stated in the Federal Arbitration Act (FAA) at 9 U.S.C. sec. 9-11, are exclusive for parties seeking expedited review under the FAA. The...

Oregon Supreme Court affirms negligence claim against builder for property damage

Posted on March 22, 2008
The Oregon Supreme Court on Thursday held that a builder may be liable to a subsequent purchaser for repair costs resulting from negligent construction. The defendant in Harris v. Suniga unsuccessfully urged the court to bar damages under the 'economic...

Washington's LLCA time-bars general contractor from pursuing claims

Posted on March 18, 2008
Overturning a trial court ruling, the Washington Court of Appeals, Division One, yesterday ruled that the ?effective date of dissolution? of an administratively dissolved limited liability company under the Washington Limited Liability Company Act (LLCA), RCW 25...

Court dismisses antitrust complaint, then allows discovery

Posted on March 12, 2008
In 2007 the US Supreme Court raised the standards for pleading a federal antitrust claim, holding in Bell Atlantic v. Twombly that plaintiff must plead sufficient facts to suggest an illegal agreement in restraint of trade. The Ninth Circuit last...

New commentary on appeals of class action certification

Posted on March 10, 2008
An article titled Class Certification and Interlocutory Review: Rule 23(f) in the Courts, by blog contributor Lori Irish Bauman, appears in the most recent issue of the Journal of Appellate Practice and Process. The article critiques the federal circuit courts'...

Oregon Supreme Court adopts a 4-to-1 ratio for punitive damages against insurer

Posted on March 06, 2008
The Oregon Supreme Court today significantly reduced a punitive damage award against an insurance company on a claim of bad faith failure to settle. In Goddard v. Farmers Insurance Co., a jury found that an automobile insurer had in bad...

Evidence of immigration status allowed on claim for future wage loss under Washington law

Posted on February 26, 2008
In a case of first impression, Washington Court of Appeals, Division I, held yesterday that a plaintiff's immigration status may be admissible where plaintiff claims damages for future wage loss. The case, Salas v. Hi-Tech Erectors, involved an injured worker's...

Don?t forget to confer before filing a motion in Oregon state court

Posted on February 25, 2008
While it can be easy to overlook the conferral requirement in Uniform Trial Court Rule (UTCR) 5.010, a recent opinion by the Oregon Court of Appeals underscores the importance of communicating with opposing counsel before filing a motion. UTCR 5.010....

No common law wrongful death claim in Oregon, high court rules

Posted on February 22, 2008
In a much-anticipated ruling, the Oregon Supreme Court today in Hughes v. Peacehealth held that there is no common law wrongful death cause of action in Oregon. Plaintiffs in numerous wrongful death cases over the years have argued in favor...

Plan participants can sue to recover investment losses, U.S. Supreme Court holds

Posted on February 21, 2008
The U.S. Supreme Court unanimously decided yesterday that ERISA retirement plan participants can sue plan fiduciaries for losses to their individual accounts caused by alleged fiduciary breaches. In LaRue v. DeWolff, Boberg & Associates, Inc., the plaintiff alleged that the...

You've gotta pay to play, says the Washington Court of Appeals

Posted on February 21, 2008
In a sharply-worded opinion, the Washington Court of Appeals yesterday reiterated some bedrock principles governing contract formation. In Granton v. State Lottery Commission, a pro se plaintiff claimed that he was prevented from purchasing what he believed would have been...

Washington Court of Appeals refuses to enforce a promise to create an easement

Posted on February 21, 2008
Inadequate documentation of a promise to create an easement defeated a landowner's easement claim in a case decided yesterday by the Washington Court of Appeals. In Gold Creek North Limted Partnership, et al. v. Gold Creek Umbrella Association, the real...

U.S. Supreme Court: Federal Arbitration Act preempts state law

Posted on February 20, 2008
In a case widely followed because one of the parties is television personality "Judge Alex" Ferrer, the U.S. Supreme Court today bolstered the federal policy favoring arbitration. The court held in Preston v. Ferrer that, where a contract provides for...

Will business method patents be put out of business?

Posted on February 20, 2008
"Business method patents" are those that that describe and claim a new method for conducting a business-related operation. Until 1998, business methods were largely unpatentable. But in that year, the Court of Appeals for the Federal Circuit (CAFC) declared business...

Economic development compact could spur new investment in Indian Country

Posted on February 08, 2008
The Crow Tribe in Montana has become the first Indian tribe to enter into a so-called "Economic Development Compact" with a state to make it easier for banks to file secured loans within the Tribe's Reservation. This, in turn, should...

Washington business, labor and Legislature react to the Brink's drive-time ruling

Posted on February 06, 2008
Blog contributor Brenda Molner has published an article addressing the responses of business, labor, and the Washington legislature to the Washington Supreme Court's October 2007 ruling in Stevens v. Brink's Home Security, Inc. The article is in the February 2008...

Oregon Court of Appeals affirms employer's unilateral changes to retirement plan

Posted on February 05, 2008
Applying the contract law doctrine of accord and satisfaction, the Oregon Court of Appeals last week held that an employer did not breach a contract with its employees when it unilaterally increased the amount the employees must contribute to their...

Flawed jury instruction leads Oregon Supreme Court to affirm punitive damages

Posted on February 04, 2008
The 10-year saga of Williams v. Philip Morris, Inc. yields this lesson for Oregon litigators: keep your jury instructions short. After remand of the cigarette products liability case by the U.S. Supreme Court, the Oregon Supreme Court last Thursday rejected...

Announcing our new name: The Northwest Business Litigation Blog

Posted on February 01, 2008
The Oregon Business Litigation Blog is now the Northwest Business Litigation Blog. We have expanded our scope to cover business litigation developments in Washington as well as Oregon. And we welcome lawyers from Ater Wynne's Seattle office to our roster...

Washington Court of Appeals won't enforce a one-sided arbitration agreement

Posted on January 31, 2008
Although Washington law favors arbitration, the Washington Court of Appeals made clear this week that it will not enforce an arbitration agreement that lacks neutrality. In Rodriguez v. Windemere Real Estate/Wall Street, Inc. a real estate agent sued his brokerage,...

And just a few more new laws you may have missed...

Posted on January 30, 2008
New laws affecting Oregon employers that may not have hit your computer screen yet: HB 2254: Employers who receive a request for a current or former employee's personnel file must now respond within 45 days or face a possible administrative...

President Bush signs FMLA leave expansion

Posted on January 30, 2008
On January 28, 2008, President Bush signed into law amendments to the Family Medical Leave Act. The amendments grant additional leave under FMLA to employees who have family members in the military. The legislation creates two new categories of FMLA....

Medical leave and disability in a leanly staffed medical practice

Posted on January 29, 2008
The February 2008 issue of Washington Healthcare News includes an article by blog contributor Kathy Feldman, who practices employment law in the Ater Wynne Seattle office. The article addresses the law governing leave and disability in a leanly staffed medical...

State-mandated health benefits vs. ERISA, Round 4

Posted on January 29, 2008
We previously alerted readers to San Francisco's attempt to force employers to provide a certain level of health benefits to employees, or to pay a tax to fund the city's public health programs. A Unted States District Court has held...

U.S. Supreme Court agrees to hear tribal jurisdiction dispute

Posted on January 21, 2008
For the first time since 2001, the U.S. Supreme Court this term will consider what types of disputes can be heard by Tribal courts. Earlier this month, the Court agreed to review Plains Commerce Bank v. Long Family Land and...

U.S. Supreme Court declines to expand securities fraud liability

Posted on January 16, 2008
In the latest in a string of rulings favoring business interests, the U.S. Supreme Court held today that parties who did not directly mislead investors cannot be liable for securities fraud under SEC Rule 10b-5. By a 5-3 vote, the...

Oregon trial courts prepare for electronic filing

Posted on January 13, 2008
Oregon's move to "electronic courthouses" (a goal of the 2006 State of the Courts report) continues, with a series of proposed Uniform Trial Court Rules allowing electronic filing and service of circuit court documents. Proposed UTCR Chapter 21 is among...

Oregon state courts adopt filing fee for motions

Posted on January 04, 2008
Litigation is about to get a little more expensive in Oregon. Starting February 1, a filing fee must accompany certain motions and responses to motions in state court. The fees -- $50 for motions and $35 for responses -- apply...

New year, new laws from the Oregon legislature

Posted on January 04, 2008
Oregon greets 2008 with a raft of new legislation. Laws affecting Oregon businesses include an expansion of the family medical leave law under House Bill 2635 to cover grandparents who must care for sick grandchildren. New mothers must be given...

Oregon Supreme Court ends cap on claims against public employees

Posted on January 02, 2008
On December 28, 2007, the Oregon Supreme Court held that the damage cap in the Oregon Tort Claims Act (OTCA) violates the Remedy Clause in Article 1 Section 10 of the Oregon Constitution when it was applied to claims against...

Christmas presents for civil procedure fans

Posted on December 19, 2007
A couple of recent appellate decisions may be the type that only civil procedure nerds could love. But they offer important lessons about how to handle the beginning and the ending of litigation. Yesterday the Ninth Circuit, in PAE Government...