In the age of social media, new platforms struggle to dethrone the reigning kings of Twitter, Facebook, and Instagram.  But one application, Vero, has gained traction in its attempt to replace Instagram.  Launched in 2015, Vero touts itself as a “true social” experience where users can share photos, links, music, movies, books, and location check-ins.  Although Vero launched in 2015, it shot to the top of Apple’s App Store (from #566 to #1) and Google Play seemingly overnight and currently boasts nearly three million users.  Its sudden surge in popularity is attributed to a change in Instagram’s algorithm regarding chronological order of posts and Vero’s initial promise that only the first million users would avoid paying a subscription fee (although, at the time of this publication, the application is still free until further notice).

With millions of users joining Vero in one short week, controversy quickly followed.  One of the largest complaints against Vero is its terms and conditions, which many argue as too broad and sweeping.  Specifically, many users refused to join or deleted their accounts after realizing they granted Vero “a limited, royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, translate, distribute, syndicate, publicly perform, publicly display, make derivative works of, or otherwise use your User Content.”  Royalty-free?  Irrevocable?  Sounds scary to the average user.

But if those terms are a concern, we caution you to inspect the terms and conditions of all your social media platforms; they each use similar language.

Every tweet grants Twitter “a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content […]. This license authorizes us to make your Content available to the rest of the world and to let others do the same.”  Don’t be surprised if Facebook itself “likes” the video you posted of your adorable niece, because you granted them “a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook.”  Posted a perfectly filtered photo of your brunch to Instagram?  In addition to giving them envy over your eggs Benedict, you also gave Instagram a “non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content.”

The use of these platforms themselves are an acceptance of their respective contractual terms, and like any contract, it is imperative to understand exactly to what you have agreed.  Ultimately, Vero’s terms and conditions are no broader or narrower than most platforms’ terms and conditions.  There are arguments for and against all social media platforms that go beyond their respective terms and conditions, but if your use is conditional on those terms, consider reevaluating your involvement with any social media platform.



Each day more and more women come forward to share their stories of abuse within the workplace and without. And people are actually listening.

In the not-so-distant past, the primary concern for some employers may have been the legal consequence of firing a worker after she internally reported sexual harassment. Now, as women become more emboldened to speak up and as the public becomes more receptive to listening, employers have more to worry about than just the legal repercussions. In the year 2018, merely an accusation could end a career, or even a business. Thus, it is more important now than ever for employers to implement workplace procedures for preventing harassment and properly handling accusations.

Addressing sexual harassment requires first understanding what it looks like. It might surprise you to know that harassment is likely much broader than you think. In general there are two types of sexual harassment—quid pro quo and hostile work environment. The hostile work environment cases are typically more difficult to prove because the question arises of just how hostile the environment must be.

Sexual harassment falls under the category of sex discrimination, which is impermissible under Title VII of the Civil Rights Act of 1964. To be actionable under Title VII, the conduct must be “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986) (internal quotations omitted). A worker need not suffer an adverse economic effect to meet this standard. And, the inquiry does not center on whether the sex-related (not sexual-related) conduct was voluntary, but rather focuses on the unwelcome nature of the behavior.

Thus, even conduct that appears to be tolerated by a subordinate or coworker may constitute sexual harassment if the advances are unwelcome. Considering that the courts struggle with the concept of unwelcome versus welcome conduct, employers and their supervisors should hesitate to assume that seemingly innocent behavior is ok with a female (or even a male) colleague.

When employers receive a complaint of sexual harassment, they must act. In the current climate, the public will not accept a company’s claim of ignorance. Sticking your head in the sand is no longer a viable option when a woman comes to you to say “me too.”


77064643 – online slap, the relationship of men and women

The Texas Citizens Participation Act (“TCPA”)[1], enacted in 2011, is the Texas version of an Anti-SLAPP[2] statute, which have been enacted by over 30 states around the country to protect free speech and the right of association of private citizens under the First Amendment from harassing and baseless litigation aimed at curtailing those rights.

Intended for a worthy and important goal, the statutes were shepherded by an interesting coalition of large media corporations, law professors and civil libertarians. The Texas statute was also passed unanimously by both the Texas House and Senate-indeed, seemingly, everyone can agree that the right of private citizens to exercise their First Amendment rights to free speech and free association should not be chilled by meritless lawsuits.

However, because the wording of the TCPA is so broad (and goes far beyond traditional protections of free speech,) and because the Texas Supreme Court, and various courts of appeal around the state, have not backed down from enforcing the statute, exactly as written, lawsuits one would never expect to infringe upon First Amendment Rights have been tossed out of court.

The result has been to create a tool that arguably has been used to shut down legitimate claims under the guise of protecting citizens’ First Amendment Rights. Practitioners and concerned citizens alike should be aware of the statute and the surprising ways in which it is applied.

The Statutory Provisions.

Some of the key definitions under the TCPA include:

“(2) ‘Exercise of the right of association’ means a communication between individuals who join together to collectively express, promote, pursue, or defend common interests.

(3) ‘Exercise of the right of free speech’ means a communication made in connection with a matter of public concern.

. . .

(7) ‘Matter of public concern’ includes an issue related to:

(A) health or safety;

(B) environmental, economic, or community well-being;

(C) the government;

(D) a public official or public figure; or

(E) a good, product, or service in the marketplace.”[3]

Court Decisions and Unintended Consequences.

The Texas Supreme Court first set the example for interpreting the statute and enforcing it-exactly as written-in a seemingly surprising manner in the Coleman decision.[4]

In Coleman, a former employee sued ExxonMobil Pipeline for defamation, alleging that his employer had wrongfully accused him of falsifying records when terminating his employment.

ExxonMobil filed a motion to dismiss the suit under the TCPA. The Texas Supreme Court held the defamation action should be dismissed under the TCPA because the decision to terminate the employee was “related to health and safety, or the environmental, economic, or community well-being” and was a matter of public concern under the plain meaning of the statute, despite the communication of the reasoning for termination being transmitted solely between the management of the company and with Coleman himself.

According to his former employer, Coleman had failed to properly measure or report the correct measurement of petroleum products in a storage tank. That pedestrian reason for his dismissal was transformed into ExxonMobil Pipeline’s First Amendment right to free speech because, under the court’s reasoning and ExxonMobil’s argument, mismeasurement could have led to an accident-thus, meeting the statutory definition of a “matter of public concern” under the portion of the definition which includes the language, “an issue related to: health or safety . . . [or] environmental, economic, or community well-being . . .”

The Coleman decision laid down a marker for the courts of appeal around the state that the plain meaning of the statutory language must be enforced regardless of the impact on seemingly legitimate lawsuits or the original intent of the statute’s drafters.

Elite Autobody Decision.

The Third Court of Appeals at Austin has issued decisions containing possibly the most-extreme examples of the application of the Texas Supreme Court’s logic in interpreting the plain meaning of the TCPA, as laid out in Coleman.

In the Elite Autobody[5] decision, the Austin court of appeals applied Coleman to a TCPA motion to dismiss in a traditional, run of the mill, commercial trade secrets case between two competing Autobody repair shops in Austin, Texas.

Employees left Autocraft to work for Elite. Elite sued Autocraft claiming the employees had stolen trade secrets (typical internal company information including employee pay and personnel information, customer information and alleged compilations of proprietary technical data.) These type of suits generally turn on whether or not the alleged trade secrets actually deserve trade secret protection. However, Autocraft also filed a motion to dismiss under the TCPA.

The court held that the suit was properly dismissed because of the (broad and) plain meaning of the statute, the suit was found to infringe on the departed employees’ right of association because they were free to go to a new employer and their communication of their former employer’s company information was held to be a “communication between individuals” who were joining together to “pursue common interests.”

Despite the fact that the original proponents of the statute had the lofty goal of protecting citizens’ First Amendment rights from harassing and chilling lawsuits, the literal wording of the statute has lead Texas courts to apply it to-and dismiss-routine competition cases, and cases further far afield.

Out-of-Control Helicopter Parenting Condoned or Rendered Unactionable?

The Third Court of Appeals has recently handed down a more extreme example of this philosophy of statutory construction in its decision in Cavin v. Abbott.[6]

The Cavins were upset that their adult daughter, Kristin was dating Bill Abbott. The turn of events that followed is a harrowing reminder of the potential abuse of over-parenting-to say the least.[7] The decision itself demonstrates how far the “plain meaning” of the statute extends.

Kristin, in her mid-20’s was living in an apartment paid for by her parents while attending graduate school at the University of Texas. She met Bill Abbott through work and they began dating. Bill was older than Kristen and Kristen’s parents made it known, with increasing intensity that they did not want the couple to date-despite Kristin’s repeated protestations of her love and requests that they back-off.

Eventually, Kristin’s parents (allegedly) physically assaulted Kristin (on two separate occasions-one of which resulted in her mother’s arrest,) wrote scathing social media posts, and contacted both Bill’s and Kristen’s employers, accusing Bill of being a sociopath and using Marxist mind-control techniques to brainwash their daughter. When family members and friends wrote Kristin to side with her or give her encouragement, the Cavins sued them in lawsuits demanding damages of a million dollars, and more. A myriad of horrifying actions continued. Kristin eventually changed her last name and moved in with Bill, ultimately marrying him. But, Kristen’s parents apparently remained undeterred. The Cavins hired a private investigator and allegedly instructed him to “rattle” Bill by closely following him around, in an open and obvious manner. The Cavins had appeared at Kristin’s work to claim she had been kidnapped and was being held against her will. And, the Cavins recorded and posted a series of videos on the Internet and social media sites discussing the abusive-relationship narrative they were pushing in relation to Kristin and Bill.

Ultimately, Bill and Kristen hired a lawyer to file suit to try to stop Kristen’s parents from pursuing their campaign against the couple. The Abbotts sued the Cavins for conversion, defamation, tortious interference, abuse of process, assault, intrusion on seclusion/invasion of privacy and intentional infliction of emotional distress.

The Cavins filed a motion to dismiss under the TCPA.

The Austin court of appeals dismissed the case, except for the assault claim. The reasoning of the court followed the same logic laid out in Coleman. The court emphasized that the “exercise of the right of free speech” set forth in the statute, as to a matter of “public concern” “includes an issue related to . . . health or safety.” The court held that the communication need only be made “in connection with” an issue related to “health and safety.”

Citing the Coleman precedent, the Austin court stated the Texas Supreme Court has made it clear the TCPA must be enforced, exactly as written. Because the Cavins’ communications about their daughter’s relationship with Bill were literally made in connection with a matter related to their daughter’s health and safety, the TCPA applied and all of the claims had to be dismissed (with the exception of the assault charge relating to a physical altercation with Kristen’s father since the TCPA expressly excepts claims for assault.)

Legacy of Decisions Applying Coleman.

The Supreme Court has made it clear that he statute is to be applied exactly as written-damn the consequences.

Whether you believe the Third Court of Appeals at Austin is on a mission to prod the legislature to revise the TCPA and narrow its broad language, or that they are merely dutifully following Supreme Court precedent, it is also clear that the TCPA is here to stay unless and until it is revised. The TCPA must be incorporated into the litigator’s toolbox and considered very carefully in strategic planning for prosecution or defense of private lawsuits. Citizens in the State of Texas, in turn, should note the application of the courts’ literal interpretation of a well-intentioned law-and both the good and the ill effects, which have resulted.

[1] The Texas Citizens Participation Act, See Tex.Civ. Prac. & Rem. Code Ann. §§ 27.001-27.011.

[2] SLAPP: Strategic Lawsuits Against Public Participation.

[3] See Tex.Civ. Prac. & Rem. Code Ann. §§ 27.001 (2), (3) and (7).

[4] ExxonMobil Pipeline Co. v. Coleman, 512 S.W. 3d 895 (2017).

[5] Elite Autobody LLC v. Autocraft Bodywerks, Inc.,

[6] Cavin v. Abbott, __S.W.3d __, 2017 WL 3044583 (Tex.App.—Austin 2017).

[7] Based upon the “facts” taken as true by the Third Court of Appeals in its decision.

During the last five years, the United States has seen a drastic increase in mass shootings.

On November 5, 2017, just after 11:00a.m., a gunman entered a church in Sutherland Springs, Texas and opened fire. That Sunday morning 26 church patrons were killed and another 20 were injured including men, women and children.

On October 1, 2017, a gunman opened fire on a crowd of concertgoers at a music festival in Las Vegas leaving 58 people dead and 851 injured.

On June 12, 2016, a 29-year-old security guard killed 49 people and wounded 58 others in a nightclub in Orlando, Florida.

On December 14, 2012, a man walked into an elementary school and killed 20 children between the ages of six and seven years old, as well as 6 adult staff members.

In the wake of some of the deadliest mass shootings in U.S. history, many businesses, schools and churches are asking themselves whether they should be doing more with regard to security. From a legal standpoint, the answer may be evolving. As mass shootings become more and more frequent in the United States, what should hosts of large groups be doing to protect their patrons from violence and themselves from liability exposure?

Unfortunately, the answer varies widely depending on the circumstances. Factors such as 1) crowd size, 2) location, 3) specific existing threats, 4) previous security problems and 5) the level of vulnerability of patrons are just some of the issues that should be considered. However, what we believe is reasonable and necessary when it comes to security is evolving rapidly. For example, many “soft targets” such as open venues, churches and schools that previously would not have been expected to have private armed security guards, may need to re-evaluate their security plan given the increase in mass shootings across the country.

While we hope we never reach the point where a jury of our peers is judging our security decisions in retrospect, when addressing security needs from a legal standpoint, consider what is reasonable and prudent given the current environment and substantial increase in mass shootings across the country.

The moral answer to this question is outside the scope of this article; however, from a legal standpoint, in a civil lawsuit alleging inadequate security, a jury would likely be asked to determine whether the Defendant was negligent. Negligence is defined as:

The failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances

In an era where mass shootings are becoming commonplace, churches, schools and businesses should consider that what may have been reasonable (i.e. ordinary prudence) five years ago, is not necessarily reasonable today. At what point does it become negligent to fail to have professional armed security if you are hosting a large, vulnerable group of people? While the answer to this question will vary depending on the circumstances, in the context of a civil lawsuit, a jury will inevitably decide.

So you are a party to a new civil litigation case, which means you have either sued someone or just been sued.  Your lawyer sends you an email that the Court has just set your case for a non-jury trial for a date in the future.  In the same email, your lawyer asks if you want to pay the jury fee, which usually is nominal, and have the matter set for jury trial, or whether you prefer to have the case remain as a non-jury trial.  It is, after all, the client’s decision on whether to have a jury trial or a non-jury trial.  What do you do?

Both types of trials – jury and non-jury – have advantages and disadvantages.  A non-jury trial, also known as a bench trial or a trial before the Judge, generally is more informal than a jury trial,  shorter than a jury trial, and less expensive to prepare for and conduct.   For example, in a non-jury trial, the lawyers do not have to draft a jury charge (the questions the jury will answer, such as who was responsible for the accident, and the percentage of responsibility each party), or have a “charge conference” with the Judge where each side argues that its proposed jury questions should be included in the jury charge.  The charge conference is conducted outside of the presence of the jury, and can last from several hours to an entire day or more, depending on the case.  After the jury charge is finalized, the Judge will read the jury charge to the jury, the lawyers will make closing arguments, and then the jury will retire to the jury room to deliberate.

None of these time-consuming jury charge issues are present in a bench trial.  However, one of the disadvantages of a non-jury trial is that one person – the Judge – hears all the evidence, weighs the credibility of the witnesses, decides which facts are true and not true, rules on evidentiary issues and objections, applies the law to the facts, decides who should win, and the amount of damages awarded, if any.  In a jury trial, the jury hears the evidence, weighs the credibility of the witnesses, decides which facts are true and which are not, decides who should win, and whether any damages should be awarded.  In a jury trial, the Judge’s role is to preside over the trial, rule on evidentiary objections, and apply the law to the facts after the jury has answered the questions on a jury charge – but in most cases, the Judge does get to decide by his-or-herself which party should win.

There are lots of other issues to be considered in deciding whether to have a jury trial or a non-jury trial.  Additionally, a litigant does not always have a choice regarding which type of trial.  We will discuss the additional factors in upcoming posts in this series.

The last decade has seen an unprecedented growth in technology, which has paved the way for internet globalization and given new meaning to the term “international commerce”. Consequently, the digital highway has become populated with modern day highwaymen out for a fast buck. These rogues, known as “cybersquatters”, are individuals who register domain name addresses with the primary purpose of reselling them. Therefore, trademark holders are forced to pay these cybersquatters a substantial amount of money in order to get back a domain name making use of their trademark.  When cybersquatting first reared its ugly head, the only ammunition that trademark holders had was traditional theories based on trademark law. However, these proved to be insufficient in the wake of internet technology, thus necessitating the creation of new enforcement mechanisms. Hence, the Anti-Cybersquatting Consumer Protection Act (ACPA) was enacted.

In enacting the ACPA, Congress was attempting to create a bright-line rule that would clearly resolve cybersquatting disputes. However, what it has also done is create uncertainty in many cases.  Granted, the Act is useful in cases involving obvious bad faith.  But where the circumstances surrounding bad faith are unclear, the Act is less helpful. In determining bad faith, one of the more important factors in the Act is whether the defendant “offered to transfer, sell, or otherwise assign the domain name to the mark owner or any third party for financial gain without having used, or having an intent to use, the domain name in the bona fide offering of any goods or services.” The difficulty comes in where the court has to determine whether a defendant intended to use the domain name.  It would be very difficult to say with any certainty that someone did not intend to use a name.  It is possible that a defendant registered a domain name with the intention of offering goods and services, but later decided that the business venture was not economically viable.  In this situation, it would make sense to sell the domain name if there were any takers.  However, it is also plausible that the defendant will not be able to prove that it had plans to start a business.  The court might then infer bad faith in a situation where the defendant was nothing more than conscientious in promptly registering a domain name.

It is easy to see how a defendant can be snagged in the cybersquatting net when it had no bad faith intentions to begin with. More important, a defendant’s use of a domain name may not even infringe on a valid trademark. Trademark law in the U.S. is complex with many factors that need to be considered before superior rights are determined. But the problem with the concept of cybersquatting is that it assumes that one of the parties has to be the “bad guy” (usually the domain name registrant). The ACPA can be used to pressure a defendant into giving up a domain name in what is known as “reverse cybersquatting,” and it can be a powerful bullying tool given the substantial penalties that the ACPA inflicts on cybersquatters.

So in the event you receive a cease and desist letter from a business claiming that you wrongfully registered a domain name that infringes on their trademark, do not automatically cave in to the pressure. You need to seek the advice of trademark counsel if you registered the domain name in good faith. You may in fact have superior rights to both the domain name as well as the trademark itself. It could very well be that the accuser is trying to bully you into giving up a domain name that it did not have the foresight to register.

Texas Capitol Building in AustinOn our On the Radar blog, which covers new developments in the law surrounding unmanned autonomous vehicles or drones, associate Tressie McKeon recently published a post discussing current Texas law governing drones and its interaction with federal law. Though the federal government (that is, the Federal Aviation Administration (FAA)) exclusively regulates navigable airspace across the country, states can and have regulated commercial drone use via law enforcement-focused statutes, such as those pertaining to trespassing.

We invite you to read her valuable discussion.

If business owners are not concerned about the make-up of their workforce, they should be. In recent years, the number of lawsuits concerning misclassification of employees has risen exponentially. This is because companies routinely call members of their workforce independent contractors (“IC”) when in reality they are employees.

Internal Revenue Service (IRS) Tax AuditorIf an audit by the Texas Workforce Commission (“TWC”) shows a business has incorrectly classified employees as independent contractors, and therefore failed to properly report wages and taxes, the company could be reported to the Internal Revenue Service (“IRS”). The company could then be liable for back taxes and interest, not to mention a possible IRS audit. And, the IRS audit would likely reveal the company was not eligible to receive the federal tax credit the company claimed with respect to the wages paid out to the contract labor in question.

According to the TWC’s website, a number of scenarios could bring about a TWC audit. It could arise from an unemployment claim, a competitor or former agent making a claim that the company incorrectly classifies workers, a random audit, or the TWC may “target a specific industry.”

The TWC uses similar guidelines to those set out by the IRS regarding the classification of workers. IRS Publication 15-A outlines the IRS test to determine whether a worker is an employee or independent contractor. According to the IRS, there are three main criteria that classify a worker. These criteria boil down to: 1) the type of relationship that exists between the parties; 2) the amount of control the worker retains over how they do their jobs; and 3) how they handle the financial aspects of performing their work.

Here are some of the things to consider when determining whether a worker would be classified as an employee or an independent contractor:

The nature of the relationship with the workforce

Is there a written contract describing the relationship with our workers? Even a contract that clearly states workers are independent contractors may not be enough. The nature of the relationship could work trump the language in the contract.

Are benefits like insurance and a 401K provided? These are employee type benefits

What about the permanency of the work relationship? Do the workers have a specific project or time-frame delineated in their contracts? If not, their relationship with the company could continue indefinitely and this permanency is indicative of an employer-employee relationship.

The amount of control the company exerts over its workers

This is where many small business owners run afoul of the IRS and TWC guidelines. Most companies exercise extensive oversight regarding how its workers do their jobs. Do the workers have a set schedule? Independent contractors do not have schedules as they work for themselves. Does the company provide training to the workers? This should not be necessary for contract labor. Independent contractors generally use their own methods to achieve the company’s desired results. Has the company laid out a definitive set of policies and procedures on how to perform their duties? If so, this is clearly an excessive amount of control over an IC, and this alone would likely lead the TWC and the IRS to classify the company’s workers as independent contractors rather than employees.

The amount of control our workers have over the financial aspects of their work

Independent contractors generally incur un-reimbursed business expenses during the course of their contract. These kinds of expenses include rent for office space, travel expenses, and marketing expenses. Does the company cover any or all of these expenses? Do the workers have any significant financial outlay in the performance of their work? Does the company provides the office space, phone, business cards, desk, Internet, leads or marketing materials? This kind of equipment and support is generally provided to employees and not to independent contractors. Does the company restrict the workers’ ability to market their services on the open market? Traditionally, a contractor is free to market their services however they see fit.

How the company pays its work force

Is the worker paid by the hour or for a finished product or service? Does the worker submit invoices or expenses? Does the worker receive any advances or draws? And finally, does the company withhold taxes and issue a 1099? While not insurmountable, any one of these could reclassify a worker.

In summary, in Texas, a worker is presumed to be an employee. However, if the classification is challenged by the TWC, the IRS, or in the courts, it is up to the company to prove the independent contractor classification is correct.

Tressie E. McKeon is an associate in the firm’s Litigation Department and head of its Aviation practice, resident in its Dallas office.

It has become an almost perfunctory practice. You catch wind of another business using a confusingly similar name. You then call a lawyer to immediately send out a cease and desist letter. More often than not, this would be the right play. But there are pitfalls to this strategy if you are not careful. In order to understand how a cease and desist letter can backfire in certain situations, it is important to understand how trademark rights are acquired in the United States. Unlike most countries where trademark rights are granted to the first to register a mark, the U.S. grants such rights to the first to register OR the first to use the mark. When a business obtains a federal trademark registration, it confers nationwide rights to use the mark except for geographic areas where a prior user has established common law trademark rights. A prior user’s common law rights are cemented regardless of whether they registered their mark. If you send a cease and desist letter to such a prior user, you may get a response letter demanding that you cease and desist using your mark in their neck of the woods. In that situation, your federal trademark registration is of no effect, and you risk having the tables turned on you by this prior user (assuming that this prior use was uninterrupted). This is because the prior user established their rights to use that name in their area before you obtained your registration. To add insult to injury, if your trademark registration is less than five years old, the prior user can petition the Trademark Office to cancel your registration! Oftentimes, these prior users are not even aware of your trademark registration. But by sending out that cease and desist letter, you put yourself in their radar and opened up your business to more trouble than the initial demand was worth.

Before you start questioning the utility of a trademark registration given this seemingly unfair situation, keep in mind that when a trademark is registered, it “freezes” all prior users in place so they can no longer expand the use of their current business name. If a prior user in State A later decides to expand into your State B, then you as a trademark registrant can prevent such an expansion. Therefore, before sending out a cease and desist letter you need to be reasonably certain that you are not dealing with a prior user in an overlapping geographic area. With larger businesses, you can possibly determine this with an internet search. But for smaller “mom and pop” shops, you may not be able to determine when they first used the business name in question. There are companies that can provide you with a report on the earliest use of a name by another business. The cost of such a report is relatively modest given what is at stake, and obtaining a report before sending out a cease and desist letter is money well spent. At the very least, a prudent trademark registrant should consider the risks and rewards of pursuing a business using a similar name, and conduct an internet and public records search to get an idea of the pecking order of trademark users in certain geographic areas.

It seems that a lot is going on in DC these days. In what may have been lost in all the other activity, yesterday the Department of Labor issued a Request for Information seeking notice and comment before issuing revised proposed regulations regarding the minimum salary level required to  meet the three most common exemptions under the overtime provisions of the Fair Labor Standards Act.  Who cares, right?  Mind-numbing administrative procedures, right?  Maybe.

A little background is probably necessary.  Back before Russia, fake news, alternative facts, and leaks, the DOL under President Obama issued new regulations that raised the minimum salary level for the executive, professional, and administrative exemption to the FLSA’s overtime requirements from $455 per week to $913 per week.  The rule was supposed to go into effect on December 1, 2016, and would have resulted in millions of more workers becoming eligible for overtime.  Employers spent a lot of time in 2016 getting ready for the new rule by making changes to the workforce to make sure that workers were properly classified under the new rules.

Then there was a lawsuit.  And from that lawsuit came an injunction against the new rule going into effect.  And that injunction resulted in an appeal.  And that appeal is still pending.  But here is where things get interesting.  Candidate Trump became President Trump, and Trump’s DOL took another look the new salary limit.  Trump’s DOL told the United States Court of Appeals for the Fifth Circuit that the DOL was no longer pursuing the $913 salary level that was set by Obama’s DOL.  To be sure, Trump’s DOL still wanted the authority to set a salary level, but it just was not interested in the salary level set by the previous administration.

Yesterday’s notice by DOL is the first step in the process to decide if there should be an increase in the salary limits for the overtime exemptions under the FLSA.

What does all of this mean?  First, the DOL is not going to pursue the new rule that was to have gone into effect on December 1, 2016.  With no one left to fight the appeal, any confusion regarding how the injunction would impact the workforce and the potential retroactive application of the Obama DOL rule if the appeals court overturned the injunction no longer seems in play.  Second, it will be several months (or years) before the DOL decides whether to issue a new rule regarding the salary level for the executive, professional and administrative exemptions under the FLSA.