Gene Patents: The Myriad Genetics Case
Supreme Court Pops the Cork, Does It Let the Biotech Genie Out of the Patent Bottle?
By Arthur House, Attorney
The Supreme Court has ruled that naturally occurring human genes are products of nature that are not eligible to be patented. At the same time, however, the Supreme Court held that artificially created DNA, so-called complementary DNA or cDNA, is patentable because it is not naturally occurring. The Court’s 9-0 decision in Association for Molecular Pathology, et al. v. Myriad Genetics, Inc., et al., No. 12-398 (June 13, 2013), written by Justice Clarence Thomas, has been hailed by patients’ rights groups, civil liberties advocates and the biotech industry as a milestone decision that will spur innovation in biotech research and benefit patient care. Moreover, the ruling probably will have application in non-human other areas of research, such as plant, animal and microbial genes. Nonetheless, the short and long-term implications of the case may not be as far-reaching as some have indicated.
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Unpaid Interns a Costly Mistake for Employers?
By Jack Blum, Associate
With the 2008 recession creating a fiercely competitive job market for recent college graduates, the phenomenon of unpaid internships has become increasingly common as job seekers are willing to forego pay in order to gain experience, references, or anything else that might provide an advantage in finding future employment. For employers also facing tough economic times, this influx of free labor may appear to be an easy way to cut costs and increase profitability. Unfortunately, a June 11, 2013 court ruling underscores that unpaid internships offered by for-profit employers may ultimately cost the employer far more than simply paying the interns in the first place.
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Fed Program Preempts Virginia Death Benefits Statute
By Michelle J. Chapin, Associate
Virginia Code §20-111.1(A) and (D) revokes a beneficiary designation in any contract naming a former spouse as the beneficiary of death benefit proceeds. If the revocation is preempted by federal law, the statute stipulates that the former spouse is personally liable to the person who would have received the death benefit. This law was intended to prevent divorced individuals from inadvertently granting a windfall to an ex-spouse.
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Lost at Trial in Maryland? What NOT to do on Appeal!
By Patricia M. Weaver, Principal
So, you thought you had a good case going into trial, but things did not go quite the way you anticipated. Rest assured that the trial court’s decision need not be the end of the line. The appellate courts exist because the trial courts do not always get it right.
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No ADA Claim for Maryland Bus Driver
By Ethan L. Don, Associate
On May 20, 2013, the Court of Appeals of Maryland in Zei v. Maryland Transit Administration, held that a bus operator employed by the Maryland Transit Administration (MTA), and who suffered from cardiovascular disease was, as a matter of law, not a “qualified individual” under the Americans with Disabilities Act (ADA). In simpler terms, the bus driver was not entitled to the protections of the ADA after his termination for failing to meet physical qualification standards for the job. The case appears to be the first of its kind in Maryland. Employers should be aware that federal and state regulations may provide defenses to claims of disability discrimination and may also, in limited circumstances, reduce the need to perform an individualized assessment and to provide a reasonable accommodation.
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Timing is Best Wedding Gift for Prenuptial Agreements
By Howard B. Soypher, Principal
As I have written in the past, for all of us family law practitioners wedding season equates to prenuptial agreement season. While we prefer to begin the process of negotiating and drafting those agreements several months prior to the special day, we often receive these calls only a few weeks before the wedding day.
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MD Toughens Rules Against Pregnancy Discrimination
By Ethan L. Don, Associate
On May 16, 2013, a Maryland law was approved which substantially modifies existing protections against pregnancy-related discrimination and appears to create something resembling “most favored nation” status for pregnant workers. All Maryland employers with more than 15 employees need to pay close attention to the new law because it changes human resource management protocol for dealing with pregnant employees, requires more posters be displayed in the workplace and mandates modifications to employee handbooks. The law is scheduled to take effect October 1, 2013.
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Another Setback for NLRB Recess Appointments
By Jack Blum, Associate
The National Labor Relations Board (NLRB) received yet another setback from a federal appellate court on May 16, 2013 as the U.S. Court of Appeals for the Third Circuit, ruling in NLRB v. New Vista Nursing and Rehabilitation, became the second federal appellate court to hold that President Obama’s appointments to the NLRB violated the U.S. Constitution’s Recess Appointment Clause. As if that were not bad enough, the Third Circuit made this ruling not in the context of President Obama’s now-infamous January 2012 “recess” appointments, but in evaluating the legality of former NLRB member Craig Becker’s appointment on March 27, 2010, which occurred during a two-week adjournment of the Senate. It is safe to say that this case dramatically expands the scope of potentially invalid NLRB decisions.
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Liability Waivers in Maryland: Are They Enforceable?
By Arthur H. Blitz, Principal
If you have paid a visit to the local gym or community swimming pool, taken sky diving or trapeze lessons, gone scuba diving, bungee jumping, zip lining or engaged in any activity which poses a risk to life and limb, you probably had to sign a liability waiver or a “pre-injury” release. Any such document generally states that you are aware the activity you are about to undertake is dangerous and could result in personal injury or even death—and that you engage in the activity at your own risk. The waiver then states that you release the company from any claims for injuries, even if they are caused by the negligence of the company. Many of these liability or pre-injury releases also provide that you agree to indemnify and hold harmless the company from any claims arising from your use of the company’s facilities or from your participation in the activity.
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D.C. Circuit Strikes Down NLRB Poster Requirement
By Jack Blum, Associate
On the heels of its ruling that the National Labor Relations Board (NLRB) has lacked a quorum to act since January 3, 2012, the U.S. Court of Appeals for the District of Columbia Circuit again last week rebuked the NLRB by holding that it lacks the authority to require employers to post a notification of employees’ unionization rights on their premises and websites. The NLRB’s poster rule would have required over six million employers across the nation to post an 11 x 17 inch notice informing employees of, among other things, their right to:
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NLRB Offers Guidelines on Confidential Investigations
By Ethan L. Don, Associate
On April 16, 2013, the National Labor Relations Board (NLRB) released an Advice Memorandum with regard to confidential investigations and employees’ rights under Section 7 of the National Labor Relations Act (NLRA). In October 2012, we previously reported on the NLRB’s unprecedented decision in Banner Health Systems, that commonly conducted confidential internal investigations violate employees’ Section 7 rights. That section generally protects both unionized and non-unionized employees’ rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.
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New Employment Laws Likely in Maryland
By Jack Blum, Associate
2013 has so far been a busy year for the Maryland legislature. While many of the higher profile legislative items—gun control, repealing the death penalty, and medical marijuana—may not have a major effect on businesses operating in Maryland, others will effect the ever-changing employment law landscape. Paley Rothman’s Employment Law Group continues to be committed to analyzing and helping clients understand and react appropriately to the latest changes to Maryland’s employment laws.
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