Roundup: 4th, 7th, 9th and DC Circuits

4th Circuit: Georgia Pacific Paper Towel Litigation Remanded

The 4th Circuit remanded a dispute involving Von Drehle Corp. (VD)'s paper towel that only fits in rival company Georgia Pacific's (GP) paper towel dispensing machine on Aug. 10 in Georgia Pacific Consumer Products, LP v. Von Drehle Corp.

GP introduced an automatic paper towel dispenser in October 2002 for which it designed specific paper towels. Shortly thereafter, VD began producing a paper towel to fit those dispensers which GP claimed was of inferior quality. They claimed consumers would mistakenly think the towels were manufactured by G-P and this would harm the company's reputation.

GP filed suit, claiming several violations of the Lanham Act, as well as unfair competition. VD filed a counterclaim, which the district court dismissed. But on the original claim, the district court granted summary judgment in favor of VD.

The 4th Circuit vacated and remanded the lower court's decision, ruling that G-P had offered sufficient evidence, viewed in the light most favorable to G-P, for a jury to find in favor of G-P with respect to each element of G-P's contributory trademark infringement and unfair competition claims under the Lanham Act and its unfair competition claim under North Carolina common law. The court affirmed summary judgment in favor of GP on the counterclaim.

7th Circuit: Patient-Preference Law Creates Hostile Environment

Patient-preference laws do not protect a health care facility from hostile work environment claims if the preferences are race-based, the 7th Circuit ruled July 20 in Chaney v. Plainfield Healthcare Center.

Plainfield Healthcare Center, a nursing home, had a policy of honoring patients' racial preferences in an effort to comply with state and federal laws that allow patients to choose their caregivers. Even when she was the closest nursing assistant on duty, Brenda Chaney, who is black, refrained from helping Marjorie Latshaw, who asked not to be treated by black people. Chaney claims co-workers also frequently used racial epithets. She said the patient-preference rules, as well as the derogatory comments, depressed her.

Chaney was fired in September 2006 for using profanity when helping a patient, though a witness disputed the allegations. Chaney sued Plainfield for a hostile work environment, and the district court granted summary judgment in favor of the employer.

But the 7th Circuit disagreed, holding that Indiana's patient-preference laws do not require health care facilities to honor race-based wishes. Furthermore, the policy "puts Plainfield at risk of violating duties of medical care that it owes its residents," Judge Ann Claire Williams wrote for the three-judge panel.

9th Circuit: Court Rules on Contingency Fees for Public Claims

Private lawyers can represent government bodies in California on a contingency basis in civil cases, the California Supreme Court ruled
July 26 in County of Santa Clara v. Superior Court (Atlantic Richfield).

A group of California cities and counties is suing Atlantic Richfield Co. over public nuisance claims related to lead paint. The governments collectively hired private counsel under a contingent-fee agreement. The defendants filed a motion to bar the government bodies from retaining private counsel under such an agreement based on earlier case law that precluded that practice for public claims.

The state Supreme Court, however, ruled that the payment agreement was fine so long as government attorneys supervised the private attorneys and remained responsible for all critical decisions.

DC Circuit: Interference Enough for FMLA Claim to Proceed

An employee can file a Family and Medical Leave Act (FMLA) claim even if the employer didn't deny a request for leave, the D.C. Circuit ruled June 29 in McFadden v. Ballard Spahr
Andrews & Ingersoll
.

Vanessa McFadden, a secretary at Ballard Spahr, filed for FMLA leave after her husband was diagnosed with cancer in October 2002. She claimed she didn't take as much time as she was entitled to and had to pay her sister to provide care because a human resources manager misinformed her about FMLA policies and harassed her for taking too much leave.

In April 2003, McFadden began suffering from health problems herself and took disability leave. When her leave ran out, she contacted the firm about her employment status. They offered her a different position that involved a lot of typing, which she was unable to do. Ballard Spahr fired McFadden. She sued for interference with FMLA rights, and the district court granted summary judgment to the firm.

The D.C. Circuit, however, reversed the decision and remanded it to the lower court. The appeals court ruled a plaintiff need only show that the employer interfered with her rights to leave and that she suffered monetary losses because of the interference.

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