8/8. The U.S. Court of Appeals (7thCir) issued its opinion [PDF] in Schorsch v. HP, a case regarding the effective date of the removal provision of the Class Action Fairness Act.

William Schorsch is the lead plaintiff in a lawsuit brought in state court in Illinois in 2003 against Hewlett Packard. The plaintiffs' attorneys seek class action status. They allege that the design of HP drum kits for use in printers violates state law. They complaint about an electrically erasable programmable read only memory (EEPROM) chip that tells the printer when to stop working, until a new drum kit has been installed.

Earlier this year, the Congress, responding to the large number of meritless class action lawsuits being brought in class action friendly state courts, enacted the Class Action Fairness Act. It allows certain cases, that are "commenced" after February 18, 2005, to be removed to federal court. See, S 5, the "Class Action Fairness Act of 2005", which is now Public Law No. 109-2. See also, story titled "Bush Signs Class Action Reform Bill" in TLJ Daily E-Mail Alert No. 1,080, February 18, 2005.

Numerous disputes have arisen over the meaning of "commenced". Defense counsel have been aggressively seeking removal of cases that were filed before February 18, 2005. See, for example, story titled "7th Circuit Construes Removal Provision of Class Action Fairness Act" in TLJ Daily E-Mail Alert No. 1,150, Wednesday, June 8, 2005.

In May 2005 the plaintiffs' lawyers tendered a proposed second amended complaint that would expand the class from purchasers of drum kits to purchasers of all printer consumables that contain EEPROM chips. Then, HP, asserting that this constitutes an action "commenced" after February 18, 2005, removed the action to the U.S. District Court (NDIll).

The Court of Appeals held that there is no federal jurisdiction. It wrote that "creative lawyering will not be allowed to smudge the line drawn by the 2005 Act: class actions ``commenced´´ in state court on or before February 18, 2005, remain in state court. Amendments to class definitions do not commence new suits. We can imagine amendments that kick off wholly distinct claims, but the workaday changes routine in class suits do not."

The Court of Appeals also stated that "Amendments could in principle initiate litigation, however: a defendant added after February 18 could remove because suit against it would have been commenced after the effective date, and tacking a wholly distinct claim for relief onto an old suit likewise might commence a new proceeding."

This case is William Schorsch v. Hewlett-Packard Company, U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 05-8017, an appeal from the U.S. District Court for the Northern District of Illinois, Eastern Division, D.C. No. 05 C 3397, Judge Ruben Castillo presiding. Judge Frank Easterbrook wrote the opinion of the Court of Appeals, in which Judges Williams and Sykes joined.

7/29. The U.S. Court of Appeals (4thCir) issued its opinion in Venkatraman v. REI, a racial discrimination case. There are many discrimination cases in the federal courts. What is distinctive about this one is that the plaintiff is a software engineer who also alleges illegal conduct in the hiring of foreign workers under the H1B visa program.

The Court of Appeals affirmed the District Court's dismissal of the complaint. It held that his employment discrimination claim fails because he failed to exhaust administrative remedies. It also held that there is no private right of action against an employer for lying to the INS to obtain H1B visas for high tech workers.

Kirthi Venkatraman is a U.S. citizen of Indian origin. He needs no visa to work in the U.S. However, his former employer did hire alien workers under the H1B visa program for high tech workers. REI fired him. Venkatraman asserts that REI paid him less than its white workers and fired him for complaining of this treatment. He also alleges that REI lied to the INS to obtain H1B visas for other workers.

Venkatraman filed a complaint in U.S. District Court (EDVa) against REI alleging (1) employment discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., (2) wrongful discharge in violation of public policy, (3) infliction of emotional distress, (4) violation of immigration laws. REI moved to dismiss the complaint.

At issue on appeal are the District Court's dismissal of counts (1), (2), and (4). However, the District Court also dismissed count (3). The Court of Appeals affirmed.

The Court wrote that before filing a Title VII employment discrimination claim in court, one must first a charge with the Equal Employment Opportunity Commission (EEOC). Venkatraman did not. The Court of Appeals also rejected his argument he has a discrimination claim under Title VI, which prohibits discrimination "under any program or activity receiving Federal financial assistance", for the simple reason that he did not raise it in the District Court. Hence, the Court of Appeals affirmed the dismissal of the employment discrimination count.

The Court also affirmed the dismissal of the second count, wrongful discharge in violation of public policy, on the basis that it is either a federal Title VII claim (on which he failed to exhaust his EEOC remedy), or a state claim which has been precluded by an opinion of the Virginia Supreme Court.

The Court also affirmed the dismissal of the fourth count alleging violation of immigration law. Venkatraman alleged that REI had hired numerous H1B non-immigrants by falsely representing to the Immigration and Naturalization Service (INS) that there was a shortage of qualified U.S. workers. He alleged that such actions are in violation of 8 U.S.C. § 1182(n), and that a private right of action for a violation of § 1182(n) must be implied.

The Court of Appeals held that § 1182(n) does not create a private right of action.

This case is Kirthi Venkatraman v. REI Systems, Inc, U.S. Court of Appeals for the 4th Circuit, App. Ct. No. 03-1679, an appeal from the U.S. District Court for the Eastern District of Virginia, at Alexandria, D.C. No. CA-03-278-A, Judge T.S. Ellis presiding. Judge Widener wrote the opinion of the Court of Appeals, in which Judges Duncan and Quarles joined.

8/9. The U.S. Court of Appeals (9thCir) issued its opinion [10 pages in PDF] in Yellow Cab v. Yellow Cab, which is, as the title suggests, a Lanham Act case.

The plaintiff, Yellow Cab of Sacramento, filed a complaint in U.S. District Court (EDCal) against the defendant, Yellow Cab of Elk Grove, alleging trademark violation under the Lanham Act and related state law claims for unfair competition, false advertising, and intentional interference with prospective business advantage. Elk Grove is a suburb of Sacramento.

The District Court granted summary judgment to the defendant on the basis that "yellow cab" is a generic term, and, alternatively, that even if it is a descriptive term, the plaintiff failed to show secondary meaning and is therefore not entitled to trademark protection.

The Court of Appeals reversed and remanded. It held that "there are issues of material fact as to (1) whether the mark ``Yellow Cab´´ has become generic through widespread use in the marketplace, and (2) if descriptive, whether the mark has acquired secondary meaning. We therefore reverse the judgment of the district court. We also determine that the burden of proof as to validity and protectability of an unregistered mark lies with the party claiming trademark protection."

This case is Yellow Cab of Sacramento v. Yellow Cab of Elk Grove and Michael Steiner, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 03-16218, an appeal from the U.S. District Court for the Eastern District of California, D.C. No. CV-02-00704-FCD, Judge Frank Damrell presiding. Judge Sidney Thomas wrote the opinion of the Court of Appeals, in which Judges Carlos Bea and Betty Fletcher joined.

8/8. The U.S. Court of Appeals (8thCir) issued its opinion [PDF] in Emerson Electric v. Guy Rogers, a misappropriation of trade secrets and covenant not to compete case.

Emerson Electric is a ceiling fan retailer. It hired Guy Rogers as a manufacturer's representative. He signed a Sales Representation Agreement that includes a covenant not to compete for one year. He left Emerson, and established his own company, Guy Rogers Sales, in competition with Emerson.

Emerson filed a complaint in state court alleging misappropriation of trade secrets in violation of the Missouri's Uniform Trade Secrets Act, and breach of the covenant not to compete. Rogers removed the action to the U.S. District Court (EDMo). The District Court issued a preliminary injunction against Rogers enjoining him from further violation of the covenant not to compete. The Court of Appeals affirmed.

This case is Emerson Electric Co. v. Guy Rogers and Guy Rogers Sales, Inc., U.S. Court of Appeals for the 8th Circuit, App. Ct. No. 05-1441, an appeal from the U.S. District Court for the Eastern District of Missouri, Judge Richard Webber presiding. Judge Murphy wrote the opinion of the Court of Appeals, in which Judges Riley and Smith joined.

The House will not meet on Monday, August 1 through Monday, September 5. See, House calendar and Republican Whip Notice.

The Senate will not meet on Monday, August 1 through Monday, September 5. See, Senate calendar.

The Supreme Court is between terms. The opening conference of its October 2005 Term will be held on September 26, 2005.

9:00 AM - 1:00 PM. Day two of a two day workshop hosted by the National Institute of Standards and Technology (NIST) in support of the NIST's Software Assurance Metrics and Tool Evaluation (SAMATE) project. See, workshop web site and notice in the Federal Register, August 9, 2005, Vol. 70, No. 152, at Page 46147. Location: NIST North Building, 820 West Diamond Ave., Gaithersburg, MD.

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in its airborne cellular proceeding. The FCC adopted its notice of proposed rulemaking (NPRM) back on December 15, 2004. It is FCC 04-288 in WT Docket No. 04-435. See, story titled "FCC Announces NPRM on Cellphones in Airplanes" in TLJ Daily E-Mail Alert No. 1,039, December 16, 2004. The FCC extended the reply comment deadline by order numbered DA 05-1712, and dated June 23, 2005. See also, notice in the Federal Register, Volume 70, No. 133, at Pages 40276 - 40277.

Effective date of the Federal Communications Commission's (FCC) final rules implementing Section 207 of the Satellite Home Viewer Extension and Reauthorization Act of 2004. The FCC adopted its Report and Order on June 6, 2005, and released on June 7, 2005. It is FCC 05-119 in MB Docket No. 05-89. See, notice in the Federal Register, July 13, 2005, Vol. 70, No. 133, at Pages 40216 - 40225.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to the notice of proposed rulemaking (NPRM) portion of its order and NPRM regarding the extension of 911/E911 regulation to interconnected voice over internet protocol (VOIP) service providers. The FCC adopted, but did not release, this order and NPRM on May 19, 2005. The FCC released the text [90 pages in PDF] of this order and NPRM on June 3, 2005. See, story titled "FCC Releases VOIP E911 Order" in TLJ Daily E-Mail Alert No. 1,148, June 6, 2005, and story titled "FCC Sets Deadlines for Comments on VOIP NPRM" in TLJ Daily E-Mail Alert No. 1,167, July 5, 2005. See, FCC notice (DA 05-1905) [3 pages in PDF].

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Third Further Notice of Proposed Rule Making (NPRM), adopted on December 20, 2004, regarding whether to defer or eliminate the requirement in the rules that certain applications for equipment authorization received on or after January 1, 2005, specify 6.24 kHz capability. This item is FCC 04-292 in WT Docket No. 99-87 and RM-9332; See, notice in the Federal Register, June 15, 2005, Vol. 70, No. 114, at Pages 34726 - 34729.

Deadline to submit nominations of members to serve on the National Institute of Standards and Technology's (NIST) Advanced Technology Program Advisory Committee. See, notice in the Federal Register, July 29, 2005, Vol. 70, No. 145, at Page 43844.

Deadline to submit nominations of members to serve on the National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology. See, notice in the Federal Register, July 29, 2005, Vol. 70, No. 145, at Pages 43844-43845.

Deadline to submit nominations of members to serve on the National Institute of Standards and Technology's (NIST) Board of Overseers of the Malcolm Baldrige National Quality Award. See, notice in the Federal Register, July 29, 2005, Vol. 70, No. 145, at Pages 43845-43846.

Deadline to submit nominations of members to serve on the National Institute of Standards and Technology's (NIST) Judges Panel of the Malcolm Baldrige National Quality Award. See, notice in the Federal Register, July 29, 2005, Vol. 70, No. 145, at Pages 43846-43847.

Deadline to submit comments to the Department of Homeland Security's (DHS) Homeland Security Science and Technology Advisory Committee (HSSTAC) regarding its meeting of August 23-24, 2005. See, notice in the Federal Register, August 9, 2005, Vol. 70, No. 152, at Pages 46182 - 46183.

9:00 AM - 12:00 NOON. The Department of Homeland Security (DHS) will host a briefing on its new programs for acquiring information technology services and commodities. For more information, call 202 282-8010. Location: Ronald Reagan Auditorium.

2:00 - 4:00 PM. The Department of States' (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for the CITEL Permanent Consultative Committee I, Telecommunication Standardization. See, notice in the Federal Register, July 13, 2005, Vol. 70, No. 133, at Page 40414. Location: undisclosed. The DOS states that "Access to these meetings may be arranged by contacting Julian Minard at minardje at state dot gov.

2:00 - 4:00 PM. The Department of States' (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for ITU-T Study Group 3's Working Party on Charging and Accounting Principles. See, notice in the Federal Register, July 13, 2005, Vol. 70, No. 133, at Page 40414. Location: undisclosed. The DOS states that "Access to these meetings may be arranged by contacting Julian Minard at minardje at state dot gov.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "Trade Secrets: Case Law Update". The speaker will be Milton Babirak (Babirak Vangellow & Carr). The price to attend ranges from $70-$125. For more information, call 202-626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

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