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  • Date:

    Jack Daniel’s Props., Inc. v. VIP Prods., LLC (U.S. June 8, 2023)

    Opinion vacating and remanding for further proceedings. VIP Products makes a line of dog toys called “Silly Squeakers” that resemble various well-known beverages. When it made one called “Bad Spaniels” with the phrase “The Old No. 2 On Your Tennessee Carpet” that resembled a bottle of Jack Daniel’s Old No. 7 Tennessee Sour Mash Whiskey, Jack Daniel’s demanded VIP stop selling it. VIP sought a declaratory judgment, and Jack Daniel’s counterclaimed for infringement and dilution by tarnishment. The district court held in favor of Jack Daniel’s, but the Ninth Circuit reversed, holding that because Bad Spaniels is an expressive work (1) the infringement claim may proceed only if the challenged use satisfies a higher threshold test under the First Amendment of either having no artistic relevance to the underlying work or explicitly misleading as to the source or contents of the work, and (2) the dilution claim failed because as a parody, Bad Spaniels was a statutorily exempt noncommercial use of Jack Daniel’s marks. The Supreme Court vacated and remanded. On the infringement issue, the Court held that the threshold question does not apply when a challenged use is a source designation, though its expressive character might still inform whether the use is likely to cause confusion. On the dilution issue, the Court similarly held that the statutory noncommercial exclusion does not shield parody when the challenged use is as a source designation.  

    Topics:

    Intellectual Property | Trademarks

  • Date:

    AlSayyad v. Regents of the Univ. of Cal. (Cal. App. June 7, 2023)

    Opinion affirming summary judgment in favor of the University. Plaintiff, a former professor at the University of California, Berkeley, brought discrimination claims against the University after he was suspended for three years for sexually harassing a graduate student. The faculty Privilege and Tenure Committee recommended a one-year suspension and sensitivity training, finding a “momentary overstep” when he touched the student’s leg. The Chancellor, however, imposed a three-year suspension, finding instead a pattern of harassment and unprofessional behavior. Affirming summary judgment in favor of the University, the California Court of Appeals held that the Chancellor presented a legitimate nondiscriminatory reason for the more severe sanction and that plaintiff presented no evidence showing that this reason was pretextual. 

    Topics:

    Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Faculty & Staff | Race and National Origin Discrimination | Sex Discrimination | Sexual Misconduct

  • Date:

    Semelka v. The Univ. of N.C. (N.C. App. June 6, 2023)

    Opinion reversing denial of Defendants’ Motion to Dismiss. Plaintiff, a former tenured professor of radiology at the University of North Carolina at Chapel Hill, brought retaliation claims against the University and multiple officials under the North Carolina Whistleblower Act after he was terminated for false representations in reimbursement requests. In 2016, plaintiff complained that, among other things, his Department Chair ignored safety concerns. When a University investigation found no wrongdoing, plaintiff hired counsel to prepare for litigation. He then requested his Department reimburse him for $30,000 in legal fees. An audit determined that the legal services at issue were primarily personal in nature, as were nine trips he previously claimed as business travel. In prior litigation, a court held that plaintiff’s termination for misconduct was supported by substantial evidence and that the decision was properly made under the University’s tenure policy. Because the prior case found that the University’s audit was motivated by the unusual nature of plaintiff’s reimbursement request, the Court of Appeals of North Carolina held that plaintiff is precluded here from relitigating the issue of the alleged causal connection between his safety reports and his subsequent termination. 

    Topics:

    Discrimination, Accommodation, & Diversity | Faculty & Staff | Retaliation

  • Date:

    Hastings Coll. Conservation Comm. V. Faigman (Cal. App. June 5, 2023)

    Opinion affirming denial of anti-SLAPP motion. In September 2022, the Governor of California signed into law AB 1936 designating the school formally known as the “Hastings College of Law” as the “College of Law, San Francisco.” The legislation also eliminated a seat on the College’s Board for descendants of S.C. Hastings. Plaintiffs, a group of alumni of the school and descendants of S.C. Hastings, sued, alleging, among other claims, that AB 1936 violates the contracts clauses of the California and United States Constitutions. Plaintiffs also seek to enjoin the College’s Directors and Dean (College Defendants) from implementing the changes. The College Defendants moved to strike under the California anti-SLAPP statute, arguing that the acts plaintiffs seek to enjoin are inseparable from their speech referring to the College by its new name, which is protected activity authorized by AB 1936. In affirming denial of the motion, the California Court of Appeals held that “even assuming that AB 1936 is a speech-related measure, it is the State’s speech, not the College Defendants’, and the alleged wrongfulness of [their] implementation of the law is not legally distinct from the alleged wrongfulness of the law itself.” Accordingly, plaintiffs’ claims did not arise from the protected activity.  

    Topics:

    Endowments & Gifts | Governance | Governing Boards & Administrators | Taxes & Finances

  • Date:

    Pogorzelska v. VanderCook Coll. of Music (N.D. Ill. June 5, 2023)

    Memorandum Opinion and Order granting-in-part and denying-in-part Defendant’s Motion for Summary Judgment. Plaintiff, a former student at VanderCook College of Music, brought Title IX claims against the College, alleging that it exhibited deliberate indifference to her reports of off-campus sexual assault and subsequent on-campus harassment and that it retaliated against her for making the reports. The court permitted plaintiff to proceed on her deliberate indifference claim as to the assault, finding that a jury could conclude from email correspondence and disputed statements in the record that College investigators believed the respondent had committed the assault but unreasonably imposed limited sanctions in hopes of promoting a “healing process.” It also permitted her to proceed on her deliberate indifference claim as to the subsequent harassment, finding triable issues of fact as to (1) whether two incidents constituted harassment and (2) whether the College’s decision not to adjust or further enforce its no-contact order was clearly unreasonable. It granted summary judgment to the College, however, on plaintiff’s retaliation claims, finding insufficient evidence of materially adverse actions that were caused by plaintiff’s reports. 

    Topics:

    Discrimination, Accommodation, & Diversity | Faculty & Staff | Retaliation | Sex Discrimination | Sexual Misconduct | Students | Title IX & Student Sexual Misconduct

  • Date:

    Foley v. Drexel Univ. (E.D. Pa. June 1, 2023)

    Memorandum granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff, a tenured professor of philosophy at Drexel University, brought hostile work environment and retaliation claims against the University and the chair of the Department of English and Philosophy alleging “a plethora of acts that she contends show discrimination based on sex and retaliation for the majority of her time at Drexel, between 2009 and 2022.” The court deemed some of plaintiff’s claims time-barred, to the extent that they were discrete and actionable events that occurred outside of the limitations period. It permitted plaintiff to proceed under the theory of continuing violation, however, as to allegations that “do not appear to be actionable, discrete discriminatory acts,” such as “sabotage” of dinners with visiting scholars, a requirement that she seek permission from a male adjunct professor to teach a course, and disagreements about administrative matters.  

    Topics:

    Discrimination, Accommodation, & Diversity | Faculty & Staff | Retaliation | Sex Discrimination | Sex Discrimination in Employment

  • Date:

    Rolovich v. Wash. State Univ. (E.D. Wash. May 30, 2023)

    Order granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff, a former head football coach at Washington State University, brought discrimination and contract claims against the University and its Athletics Director after he was terminated following denial of his COVID-19 vaccine religious exemption request. Plaintiff’s contract provided for liquidated damages of 60% of his base salary for the term of the agreement in the event of termination without just cause. In permitting plaintiff’s failure to accommodate claim to proceed against the University, the court held that (1) he sufficiently pleaded that his Catholic faith informed his decision not to receive the vaccine and (2) the University’s assertions that his decision resulted in lost donations and negative press were insufficient at this stage to support an undue hardship finding. It permitted his contract claim to proceed, finding that whether the University had just cause for his termination similarly depended upon its evidence of undue hardship. It dismissed his religious discrimination claim against the Athletics Director under §1983, however, finding that the Director participated in the exemption review process as outlined in University policy and that this policy permitted a supervisor to question the sincerity of an employee’s asserted religious beliefs.

    Topics:

    Campus Police, Safety, & Crisis Management | Coronavirus | Discrimination, Accommodation, & Diversity | Religious Discrimination & Accommodation

  • Date:

    J.L. v. Rockefeller Univ. (N.Y. Sup. Ct. May 25, 2023)

    Decision and Order granting-in-part and denying-in-part Defendant’s Partial Motion to Dismiss. Plaintiff alleged that he was sexually assaulted by a doctor employed by Rockefeller University Hospital between 1957 and 1966, when he was between the ages of seven and sixteen, during appointments for physical exams. The court permitted plaintiff to proceed in his negligent hiring, retention, supervision and/or direction claim, finding that he had sufficiently alleged that hospital staff were aware that the doctor was abusing children and that he had taken inappropriate photographs of his victims while they were patients in the hospital. It dismissed his intentional and negligent infliction of emotional distress claims, finding the allegations duplicative of the negligence claims. In dismissed his breach of duty in loco parentis claim, finding that because the hospital did not have long-term custody or supervision of plaintiff, the duty applicable to schools as contemplated in the case law did not apply to the hospital.  

    Topics:

    Compliance & Risk Management | Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Litigation, Mediation & Arbitration | Sex Discrimination | Tort Litigation

  • Date:

    Glacier Nw., Inc. v. Int’l Brotherhood of Teamsters Local Union No. 174 (U.S. June 1, 2023)

    Opinion reversing the judgment of the Washington Supreme Court and remanding. Glacier Northwest, Inc. is a concrete company. On August 11, 2017, after multiple batches of concrete were loaded into ready-mix trucks and out for delivery, the Union representing Glacier’s truck drivers called a strike. At least 16 trucks returned to Glacier’s facility, forcing Glacier to dump the concrete to prevent it from hardening in the trucks. Glacier sued the Union for common law conversion and trespass to chattels, alleging that the Union intentionally destroyed the concrete. The trial court granted the Union’s Motion to Dismiss, finding the tort claims preempted by the National Labor Relations Act, and the Washington Supreme Court ultimately upheld. In reversing this judgment, the U.S. Supreme Court applied its Garmon preemption doctrine, which requires a party asserting preemption (1) to advance an interpretation of the NLRA that is not contrary to its language or the precedents of the courts or the NLRB and (2) to assert enough evidence to support a finding that the NLRA “arguably protects” the conduct at issue. Finding that “the Union took affirmative steps to endanger Glacier’s property rather than reasonable precautions to mitigate that risk,” the Court held that the NLRA does not “arguably protect” the Union’s conduct and, accordingly, that the NLRA does not preempt Glacier’s tort claims. 

    Topics:

    Collective Bargaining | Faculty & Staff | Litigation, Mediation & Arbitration | Tort Litigation

  • Date:

    Speech First, Inc. v. Sands (4th Cir. May 31, 2023)

    Opinion affirming denial of a preliminary injunction. Plaintiff, Speech First, a national free speech watchdog group, sued Virginia
    Tech and sought a preliminary injunction, alleging that Virginia Tech’s Bias Intervention and Response Team (BIRT) Policy (Bias Policy) and Informational Activities Policy violate the First Amendment. In affirming denial
    of an injunction related to the University’s Bias Policy, the Fourth Circuit first held that Speech First failed to show injury in fact, noting that the BIRT lacks the authority to punish students, and its process is not “so
    burdensome that an objectively reasonable student would self-censor to avoid encountering it.” Instead, it found that through its Bias Policy, the University permissibly “devised a way to educate its student body about
    both protected speech and the role of tolerance in the campus community.” Turning to the University’s Informational Activities Policy, which required students to use a content-neutral administrative process to reserve
    space before distributing literature or petitioning, the court similarly affirmed that the record was too incomplete to show that the challenged policy amounted to anything other than a reasonable time, place, and manner restriction.

    Topics:

    Constitutional Issues | First Amendment & Free Speech

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