McNair RSS Feed Mar 2017 00:00:00 -0800firmwise to Effectively Navigate Through Internal Investigations and EEOC Charges18 Apr 2017 00:00:00 -0800 <p>Join McNair attorneys as they present, <em>How to Effectively Navigate Through Internal Investigations and EEOC Charges.&nbsp;</em>The event will focus on key tactics and best practices for HR professionals during an internal investigation, and how to respond to an EEOC charge.&nbsp;Topics will include:</p> <ul type="disc"> <li>Key tactics and best practices for internal investigations</li> <li>Policies and procedures when conducting an internal investigation</li> <li>Procedures when responding to an EEOC charge(s)</li> <li>Best practices for investigation of the EEOC charge(s)</li> <li>Steps to take during an EEOC investigation</li> </ul> The schedule is as follows:&nbsp;<br /> <br /> <div>April 18 - Columbia (Presenter: Rick Morgan)<br /> Time: 8:00 - 9:30 am<br /> Location: McNair Law Firm, P.A. - 1221 Main Street, Suite 1800, Columbia, SC<br /> To register, click <a href=";oeidk=a07edxb6gylf490eac9&amp;llr=jbjxsnoab&amp;utm_campaign=April18Columbia&amp;utm_source=invitation" target="_blank">here</a>.<br /> <br /> April 18 - Charleston (Presenters: Josh Dixon, Hal Frampton and Megan McNeely)<br /> Time: 8:00 - 9:30 am<br /> Location: McNair Law Firm, P.A. - 100 Calhoun Street, Suite 400, Charleston, SC<br /> To register, click <a href=";oeidk=a07edxb8as430772692&amp;llr=jbjxsnoab&amp;utm_campaign=April18Charleston&amp;utm_source=invitation" target="_blank">here</a>.<br /> <br /> April 18 - Charlotte (Presenter: Jeremy Stephenson)<br /> Time: 11:45 am - 1:00 pm<br /> Location: McNair Law Firm, P.A. - Bank of America Plaza 101 South Tryon Street, 25th floor conference room, Charlotte, NC<br /> To register, click <a href=";oeidk=a07edxbf92ja1095099&amp;llr=jbjxsnoab&amp;utm_campaign=April18Charlotte&amp;utm_source=invitation" target="_blank">here</a>.<br /> <br /> April 19 - Hilton Head Island (Presenters: Melissa Azallion and Jon Eggert)<br /> Time: 8:00 - 9:30 am<br /> Location: Hilton Head Island/Bluffton Chamber of Commerce - 1 Chamber Commerce Drive, Hilton Head Island, SC<br /> To register, click <a href=";oeidk=a07edxbpgrj5524a15f&amp;llr=jbjxsnoab&amp;utm_campaign=April19HHI&amp;utm_source=invitation" target="_blank">here</a>.<br /> <br /> April 20 - Myrtle Beach (Presenter: Jim Gilliam)<br /> Time: 11:45 am - 1:00 pm<br /> Location: Myrtle Beach Area Chamber of Commerce, 1200 N. Oak Street, Myrtle Beach, SC<br /> To register, click <a href=";utm_campaign=April20MB&amp;utm_medium=email" target="_blank">here</a>.</div> <div>&nbsp;</div> <div>April 20 - Greenville (Presenters: Reggie Gay and Rita McKinney)</div> <div>Time: 8:30 - 10:00 am</div> <div>Location: McNair Law Firm, P.A. - 104 South Main Street, Suite 700, Greenville, SC</div> <div>To register, click <a href=";oeidk=a07edxcbz8n7f6b34f2&amp;llr=jbjxsnoab&amp;utm_campaign=April20Greenville&amp;utm_source=invitation" target="_blank">here</a>.</div> <div>&nbsp;</div> <div>April 21 - Anderson (Presenters: Reggie Gay and Rita McKinney)</div> <div>Time: 8:30 - 10:00 am</div> <div>Location: Hospice of the Upstate - 1835 Rogers Road, Anderson, SC</div> <div>To register, click <a href=";oeidk=a07edxd0lxt52b596b5&amp;llr=jbjxsnoab&amp;utm_campaign=April21Anderson&amp;utm_source=invitation" target="_blank">here</a>.</div> <div>&nbsp;</div> <div>This seminar has been approved for 1.0 PDCs for SHRM-CP or SHRM-SCP and 1.0 General HRCI credit. Complimentary breakfast and refreshments will be provided. Lunch will be provided for the Myrtle Beach and Charlotte sessions.</div> <br type="_moz" /> McNair Elects Gilliam to Shareholder22 Mar 2017 00:00:00 -0800 McNair Law Firm is pleased to announce that attorney Jim Gilliam has been elected to shareholder in the firm&rsquo;s Myrtle Beach office.<br /> <br /> Jim&rsquo;s practice is concentrated in employment, business and appellate law. He advises employers on compliance with federal and state employment laws, drafts employee handbooks and employment contracts, litigates employment related disputes and represents clients in various disciplinary matters. He also represents clients in an array of business disputes, including shareholder disputes, unfair trade practice allegations, and other business claims. <br /> <br /> &ldquo;Jim has been a valued member of the firm and our Myrtle Beach office, and we are very pleased to see him continue to grow with us,&rdquo; said Myrtle Beach Managing Shareholder Amanda Bailey.<br /> <br /> Prior to working at McNair, Jim earned an undergraduate degree Newberry College and a law degree from the Charleston School of Law in 2008. After graduating from law school, Jim worked as a law clerk to the Honorable Kaye G. Hearn at both the South Carolina Court of Appeals and the South Carolina Supreme Court.<br /> <br /> McNair's Michael Weaver Named to The State's 20 Under 4020 Mar 2017 00:00:00 -0800 McNair attorney Michael Weaver has been selected as a 2017 &ldquo;20 Under 40&rdquo; winner by The State Newspaper. Michael, selected in 2016 to lead McNair&rsquo;s Columbia office, is a shareholder with 13 years of experience representing financially distressed companies, creditors, trustees and committees in bankruptcy, insolvency, and litigation matters. He is active in both professional and civic organizations, serving in leadership roles for the South Carolina Bankruptcy Law Association and the United Way of the Midlands. He is also a 2011 graduate of Leadership Columbia and a member of the 2017 Leadership South Carolina class.<br /> <br /> &ldquo;Michael dedicates himself to the people and businesses of South Carolina through his leadership in his profession and in this community,&rdquo; said Managing Shareholder David Tigges. &ldquo;He holds extraordinary commitment to both client and community service, and we are pleased to see his efforts recognized.&rdquo;<br /> <br /> The State&rsquo;s &ldquo;20 Under 40&rdquo; is a class of twenty professionals in the Midlands under 40 years of age each of whom are making a difference both professionally and within Midlands communities. The 2017 class is the fourteenth to be recognized by The State Newspaper, all of whom are nominated by their peers. They will each be recognized at the upcoming reception on March 22, 2017 at the Capital City Club. <br /> NCSHRM Government Affairs Webinar Series: Americans with Disabilities Act: Technical Compliance and Latest Case Law15 Mar 2017 00:00:00 -0800 <p>Join McNair attorney and NCSHRM Government Affairs Director Jeremy Stephenson as he presents <b><i>Americans with Disabilities Act: Technical Compliance and Latest Case Law.&nbsp;</i></b>The event will cover both basic rules and occasionally highly technical requirements of the Americans with Disabilities Act (ADA). New ADA cases are decided by Federal Courts around the country every week, and this session will address the very latest of these. Topics will include:</p> <ul type="disc"> <li>Basic rules;</li> <li>Practical tips and best practices;</li> <li>Managing applicants and employees;</li> <li>New cases;</li> <li>And more</li> </ul> <div> <div>This seminar is from 12:00 pm to 1:00 pm on Wednesday, March 15.</div> <div>To register, click <a href=";oeidk=a07edv0a3qv5399fe0c&amp;llr=jbjxsnoab&amp;utm_campaign=employmentwebinar031517&amp;utm_source=invitation" target="_blank">here</a>.</div> <div>1.0 PDCs from SHRM-CP or SHRM-SCP and 1.0 General HRCI credit hours available.</div> </div> Northern District of California's Revised Patent Local Rules Require Early Disclosure of Damages Information14 Mar 2017 00:00:00 -0800 <div> <div> <div> <div> <div> <div> <div _mce_style=" font-size: 12pt;"> <div _mce_style="margin: 7.5pt 0in 11.25pt; line-height: 16.8pt;" align="justify">Last month, the Northern District of California revised its Patent Local Rules by adding requirements for early disclosure of damages information. Because the Northern District of California has been a national driving force in establishing patent local rules for nearly two decades, these new revisions and their subsequent application may be the beginning of a trend that could impact patent cases in districts across the country.<br /> &nbsp;</div> <div _mce_style="margin: 7.5pt 0in 11.25pt; line-height: 16.8pt;" align="justify">In 2000, the Northern District of California enacted its Patent Local Rules, which were the first local rules to address procedural issues unique to patent cases. The Northern District&rsquo;s Patent Local Rules have served as a model for many other patent-heavy districts, including the Eastern District of Texas and the Southern District of New York.<br /> &nbsp;</div> <div _mce_style="margin: 7.5pt 0in 11.25pt; line-height: 16.8pt;" align="justify">Over the years, the Northern District of California has revised its Patent Local Rules to further streamline patent litigation by narrowing issues and requiring the disclosure of infringement and invalidity contentions earlier in litigation. As explained in more detail below, the most recent revisions add requirements for the parties to disclose damages-related information: (1) the patentee must identify the categories of damages it is seeking and theories of recovery with factual support; and (2) accused infringers must provide information regarding its sales of the accused products and explain why they disagree with the patentee&rsquo;s damages theories and calculations.</div> <div _mce_style="margin: 7.5pt 0in 11.25pt; line-height: 16.8pt;" align="justify"><b><br /> Parties must disclose initial damages estimates.<br /> <br type="_moz" /> </b></div> <div _mce_style="margin: 7.5pt 0in 11.25pt; line-height: 16.8pt;" align="justify">The new revisions require the parties (patentees and the accused infringers) to disclose damages information as early as the initial case management conference.&nbsp; Pursuant to Patent Local Rule 2-1(b)(5), the parties now must provide a &ldquo;non-binding, good-faith estimate of the damages range expected for the case along with an explanation for the estimates.&rdquo; If a party cannot provide this information, &ldquo;that party shall explain why it cannot and what specific information is needed before it can do so. Such party shall also state the time by which it should be in a position to provide that estimate and explanation.&rdquo;&nbsp;<i>See&nbsp;</i>Patent L.R. 2-1(b)(5).</div> <div _mce_style="margin: 7.5pt 0in 11.25pt; line-height: 16.8pt;" align="justify"><b><br /> Patentees must produce agreements and marking information.<br /> <br type="_moz" /> </b></div> <div _mce_style="margin: 7.5pt 0in 11.25pt; line-height: 16.8pt;" align="justify">No later than 14 days after the Case Management Conference, the patentee&rsquo;s Disclosure of Asserted Claims and Infringement Contentions must also identify the date of first infringement, and the start and end of claimed damages.&nbsp;<i>See&nbsp;</i>Patent L.R. 3-1(h). The patentee must simultaneously produce the following (1) &ldquo;all agreements, including licenses, transferring an interest in any patent-in-suit;&rdquo; (2) all agreements the party &ldquo;contends are comparable to a license that would result from a hypothetical reasonable royalty negotiation;&rdquo; (3) &ldquo;all agreements that otherwise may be used to support the party asserting infringement&rsquo;s damages case;&rdquo; (4)&nbsp; &ldquo;documents sufficient to show marking of [the patentee&rsquo;s or licensees&rsquo; product covered by the patent] and if it wants to preserve the right to recover lost profits based on such products, sales, revenues, costs and profits of such embodying accused instrumentalities;&rdquo; and (5) &ldquo;all documents comprising a F/RAND commitment with respect to the asserted patent(s).&rdquo;&nbsp;<i>See&nbsp;</i>Patent L.R. 3-2(f)-(j).&nbsp;<br /> &nbsp;</div> <div _mce_style="margin: 7.5pt 0in 11.25pt; line-height: 16.8pt;" align="justify"><b>Accused infringers must produce agreements, sales, revenue, cost, and profit information.<br /> <br type="_moz" /> </b></div> <div _mce_style="margin: 7.5pt 0in 11.25pt; line-height: 16.8pt;" align="justify">Revised Patent Local Rule 3-4 requires the accused infringer to produce with its invalidity contentions (1) all agreements it contends are &ldquo;comparable to a license that would result from a hypothetical reasonable royalty negotiation;&rdquo; (2) &ldquo;documents sufficient to show the sales, revenue, cost, and profits for accused instrumentalities;&rdquo; and (3) &ldquo;all agreements that may be used to support the party denying infringement&rsquo;s damages case.&rdquo;&nbsp;<i>See&nbsp;</i>Patent L.R. 3-4(c) - (e).</div> <div _mce_style="margin: 7.5pt 0in 11.25pt; line-height: 16.8pt;" align="justify"><b><br /> The patentee and accused infringer must provide damages contentions.&nbsp;</b><br /> <br /> Within 50 days of service of the invalidity contentions, the patentee must serve damages contentions that &ldquo;identify each category(ies) of damages it is seeking, as well as its theories of recovery, factual support those theories, and computation of damages within each category, including: 1. lost profits; 2. price erosion; 3. convoyed or collateral sales; 4. reasonable royalty; and 5. any other form of damages.&rdquo;&nbsp;<i>See&nbsp;</i>Patent L.R. 3-8(a). Further, to the extent the patentee cannot provide &ldquo;fulsome&rdquo; damages contentions, the party must provide the information required to provide a fulsome response. Patent L.R. 3-8(b).</div> <div _mce_style="margin: 7.5pt 0in 11.25pt; line-height: 16.8pt;" align="justify"><br /> Within 30 days of service of the patentee&rsquo;s damages contentions, the accused infringer must &ldquo;identify specifically how and why it disagrees with those contentions&rdquo; and disclose its &ldquo;affirmative position on each issue.&rdquo;&nbsp;<i>See&nbsp;</i>Patent L.R. 3-9.&nbsp; Like the requirement for the patentee, if the accused infringer &ldquo;contends it is unable to provide a fulsome response to the disclosures required by this rule, [it] shall identify the information it requires.&rdquo;&nbsp;<i>See&nbsp;</i>Patent L.R. 3-9.</div> <div _mce_style="margin: 7.5pt 0in 11.25pt; line-height: 16.8pt;" align="justify"><b><br /> Practical effect of the revisions.<br /> <br type="_moz" /> </b></div> <div _mce_style="margin: 7.5pt 0in 11.25pt; line-height: 16.8pt;" align="justify">It appears that the intent of the Northern District&rsquo;s revised Patent Local Rules is to require early damages assessments in order to facilitate settlement negotiations between the parties. The hope is that if the parties have a more clear understanding of the amount and basis for the claimed damages, fewer cases will be tried to a substantive ruling, thereby reducing the cost and expense to the parties and the District&rsquo;s current patent caseload.</div> <div _mce_style="margin: 7.5pt 0in 11.25pt; line-height: 16.8pt;" align="justify"><br /> These revisions mark a significant change to patent litigation in the Northern District of California. Given the evolving law surrounding damages in patent law and the substantial costs of patent litigation, the early disclosure of damages contentions may be welcomed by both sides in particular cases.&nbsp;</div> </div> </div> </div> </div> </div> </div> <div> <div> <div> <div> <div> <div><span _mce_style="Times New Roman&quot;; font-size: 10pt;" size="3">&nbsp;&nbsp;______________________________________________________________</span></div> <div><span _mce_style="Times New Roman&quot;; font-size: 10pt;" size="3"><br /> </span></div> </div> </div> </div> </div> </div> </div> <span _mce_style="Times New Roman&quot;; font-size: 11pt;" size="3"> <div> <div align="left" _mce_="">If you have questions, please contact the authors of this alert,&nbsp;<a href="" _mce_href="" _mce_style="color: blue; text-decoration: underline;" linktype="1" track="on" target="_blank">Hunter S. Freeman</a>&nbsp;and&nbsp;<a href="" _mce_href="" _mce_style="color: blue; text-decoration: underline;" linktype="1" track="on" target="_blank">Lance A. Lawson, P.E.</a>,&nbsp;or a member of the firm's&nbsp;<a _mce_style="color: #0000ff; text-decoration: underline;" track="on" shape="rect" _mce_shape="rect" href=";LPA=574&amp;format=xml&amp;p=2358" _mce_href=";LPA=574&amp;format=xml&amp;p=2358" linktype="1" target="_blank">Intellectual Property</a>&nbsp;and&nbsp;<a _mce_style="color: #0000ff; text-decoration: underline;" track="on" shape="rect" _mce_shape="rect" href=";LPA=577&amp;format=xml&amp;p=2358" _mce_href=";LPA=577&amp;format=xml&amp;p=2358" linktype="1" target="_blank">Litigation</a>&nbsp;practice groups.</div> </div> </span> Trump Administration Suspends Fast-Tracked H-1B Visas09 Mar 2017 00:00:00 -0800 <p align="left">On March 3, 2017, the United States Citizenship and Immigration Services (USCIS) announced it would suspend premium processing, often referred to as fast tracking, for all H-1B petitions. The suspension takes effect on April 3, the start date of the new fiscal year filing period.</p> <p align="left"><b>What has changed</b> <br /> The H-1B visa program is one of the most popular and scrutinized visa classifications used for professionals. This fiscal year, the USCIS received nearly 233,000 H-1B petitions for 65,000 available H-1B slots.</p> <p align="left">The program enables U.S. companies to tap into a global network of foreign workers and combat staff shortages for highly skilled, often highly technical, positions. H-1B visa holders must perform a specialty occupation&mdash;typically defined as a position requiring at least a Bachelor&rsquo;s degree in a specific field. Another 20,000 foreign nationals with a master&rsquo;s or higher degree from a U.S. university can also obtain H-1B visas.</p> <p align="left">Companies have typically used the fast-track option, which requires an additional $1,225 processing fee, to receive a response from the USCIS within 15 days. The typical response time currently exceeds six months.</p> <p align="left">The H-1B program has been criticized for adversely affecting the wages of U.S. workers because foreign workers are allegedly willing to accept lower wages in order to obtain authorization to work and live in the United States. However, the H-1B program requires employers to pay H-1B workers at least the market wage for an occupation based upon the geographic market as well as the education, training, and experience required for the job.&nbsp;</p> <p align="left"><b>What is still to come<br /> </b>During his transition, President Trump proposed requiring H-1B sponsors to pay a higher wage to those seeking H-1B sponsorship. He also discussed the idea of requiring employers to obtain a certification saying no qualified U.S. workers are available for a particular job before H-1B sponsorship would be permitted.</p> <p align="left">A bipartisan bill in Congress proposes reforming the popular program by changing the existing lottery system to a preference system, eliminating foreign outsourcing companies, and encouraging the recruitment of American workers.&nbsp; Employers should remain alert to any potential changes in the H-1B program.</p> <p align="left"><b>What to do</b><br /> The suspension of premium processing could delay the hiring of foreign workers resulting in potential labor shortages. The suspension may last up to six months, and the public will be notified before premium processing continues.&nbsp; Employers should assess whether any potential or current employees will need H-1B status (including extension petitions) within the next six months; if so, H-1B petitions, if eligible, should be filed <u>before</u> April 3, 2017.&nbsp; Employers should stay in close contact with immigration counsel to monitor the shifting immigration landscape. Counsel may advise if employers meet the criteria to request to <a href="">expedite an H-1B petition</a>. Continued vigilance, preparation, and communication will help ensure businesses remain compliant and knowledgeable through the transition period.&nbsp; For questions concerning the H-1B program, please contact Melissa Azallion at <a href=""></a> or (843) 785-2171.</p> South Carolina court says 'NO' to employee's claims against Boeing01 Mar 2017 00:00:00 -0800 <div><em>Employees and their counsel have been very aggressive in attempting to couch employment claims as state-law matters and filing claims in state court instead of federal court to try to avoid the federal judiciary. For various reasons, many cases should be filed in federal court, and companies must take procedural steps to get cases in the correct court. That happened in a recent case in South Carolina. The district judge provided an excellent analysis on why (at least in the case before him) the tactic of couching a claim as a state-law matter may not be the best way for a former employee to try his case. Read on to see what the court did.</em></div> <div>&nbsp;</div> <div><strong>Background</strong></div> <div>&nbsp;</div> <div>The case arose out of James Martin&rsquo;s employment with and termination from the Boeing Company. He was enrolled in Trident Technical College&rsquo;s &ldquo;Ready South Carolina&rdquo; program when he was offered a &ldquo;Fabricator B&rdquo; position with Boeing in its interior responsibility center in Ladson. The job functions included &ldquo;basic organic chemical conversion and paint preparation,&rdquo; but Martin worked in the paint booth almost exclusively. His daily routine involved painting exclusively.</div> <div>&nbsp;</div> <div>During his employment at Boeing, Martin allegedly made several internal complaints about hazardous work conditions in the paint booth&mdash;specifically, exposure to hazardous materials and a lack of protective gear. However, he did not file a complaint with state or federal occupational safety and health officials. In August 2014, he approached his manager and indicated that he would no longer paint because of the safety concerns. Martin was then escorted to HR, and he again indicated that he would not paint. At that point, he was terminated for &ldquo;insubordination.&rdquo;</div> <div>&nbsp;</div> <div>Martin initially filed a complaint in the Court of Common Pleas for Charleston County, and Boeing had the case moved to federal court on August 11, 2016. On August 29, 2016, Martin filed an amended complaint containing four claims: (1) wrongful termination in violation of public policy, (2) defamation, (3) breach of contract, and (4) negligent representation.</div> <div>The next month, Martin filed a motion to amend the amended complaint. Boeing filed a response and a motion to dismiss for failure to state a claim.</div> <div>&nbsp;</div> <div><strong>Court&rsquo;s decision</strong></div> <div>&nbsp;</div> <div>The court had to deal with two procedural issues. The first was Boeing&rsquo;s motion to dismiss, which, at its core, is a challenge to the legal sufficiency of the complaint showing that a party is entitled to relief. The second procedural issue was whether the court would permit another amendment to a complaint that had already been amended.</div> <div>&nbsp;</div> <div>Martin&rsquo;s proposed second amendment sought to add additional facts to fully illuminate his claims and remove the negligent representation claim. Boeing challenged the proposed amendment as futile, arguing that the additional facts Martin wanted to add were immaterial allegations in a useless attempt to support his remaining claims. Boeing did not challenge Martin&rsquo;s decision to drop his negligent representation claim from the second amended complaint.</div> <div>&nbsp;</div> <div>The court analyzed the alleged futility of Martin&rsquo;s remaining claims against Boeing for wrongful discharge in violation of public policy, breach of contract, and defamation. In setting out the standard it would use in its analysis, the court noted that a futile amendment fails to state a claim for relief that is plausible on its face and that for a request to amend to be denied because of futility, the amendment must be clearly insufficient or frivolous on its face.</div> <div>&nbsp;</div> <div>With that in mind, the court noted that in his proposed amended complaint, Martin added language stating he did not file a complaint with state or federal occupational safety and health agencies because he reasonably believed that his termination would be overturned since he was not insubordinate and made valid complaints regarding safety in the facility. Boeing argued that he did not have a claim for wrongful discharge in violation of public policy because he had an existing statutory remedy for wrongful termination.</div> <div>&nbsp;</div> <div>The court found that Martin had an existing federal statutory remedy for wrongful termination through the Occupational Safety and Health Act (OSH Act), which outlines a procedure for employees to obtain relief for wrongful discharge or discrimination. He also had a state statutory remedy under the South Carolina Code, which allows an employee alleging discharge or discrimination in violation of South Carolina&rsquo;s occupational safety and health statute to file a complaint with the South Carolina Department of Labor.</div> <div>&nbsp;</div> <div>The court acknowledged that South Carolina recognizes a narrow public-policy exception to the employment-at-will doctrine but found that Martin&rsquo;s allegations did not fit within the exception. The court found that his proposed second amended complaint was futile regarding the wrongful discharge claim because he had existing statutory remedies for his occupational safety and retaliation claims under the OSH Act and Occupational Safety and Health Administration (OSHA) regulations. Further, with regard to Martin&rsquo;s claim that he reported his concerns of unsafe work conditions, the court found that his proposed second amended complaint was futile because he failed to point to any source that states employees have a right to make internal complaints about alleged violations of the regulations that would constitute a clear mandate of public policy.</div> <div>&nbsp;</div> <div> <div>The court next addressed Martin&rsquo;s claim of breach of contract. He alleged that Boeing made promises that he would be employed as a Fabricator B and that the company breached that contract by forcing him to perform tasks that were incompatible with his job description. He claimed that the job description did not express any requirement that he paint while performing his job functions and thus was patently false. Boeing argued that the breach of contract claim failed because even with the proposed amendment, Martin did not make sufficient factual allegations to establish an employment contract with the company.</div> <div>&nbsp;</div> <div>The court correctly noted that in South Carolina, the presumption is that employees are employed at will and that an employee who sues his employer must make sufficient factual allegations to establish the existence of an employment contract beyond the at-will relationship to survive a motion to dismiss. The court found that Martin&rsquo;s allegation that Boeing breached a contract by forcing him to perform tasks that were incompatible with his job description did not establish a right to relief above a speculative level. Accordingly, the court held that Martin&rsquo;s second proposed amended complaint was futile regarding his breach of contract claim because he failed to make sufficient factual allegations that established the existence of an employment contract beyond the at-will relationship.</div> <div>&nbsp;</div> <div>Next, the court addressed Martin&rsquo;s defamation claim. In his proposed second amended complaint, Martin wanted to add that Boeing published his termination to nonmanagement employees who had no need or right to know the purported reason for his discharge. Boeing argued that his allegation did not state a legally sufficient claim for defamation. The company claimed that even if Martin sufficiently pleaded defamation, he did not sufficiently claim that the alleged internal communication was not entitled to qualified privilege under South Carolina&rsquo;s intracorporate privilege provision. Boeing further argued that the proposed second amended complaint did not state a legally sufficient defamation claim because he did not sufficiently articulate the content of the alleged statement regarding his termination or specifically state to whom the statement was allegedly published.</div> </div> <div>&nbsp;</div> <div> <div>The court found that Martin did not specifically identify the statement that was allegedly published, the person who made the statement, or the person to whom the statement was made. Accordingly, the court held that the attempted amendment was insufficient to state a claim for defamation under South Carolina law. The court denied Martin&rsquo;s motion to amend and granted Boeing&rsquo;s motion to dismiss the remaining claims.</div> <div>&nbsp;</div> <div><strong>Lessons for employers</strong></div> <div>&nbsp;</div> <div>While this decision is from only one federal judge in South Carolina, there is much to grab on to from a business point of view. The court said a job description is not an employment contract. Employees&rsquo; lawyers will look for ways to get around this decision, and employers should continue reviewing their job descriptions. Consider including language that the job descriptionis not an employment contract if you do not already have such language. Remember the conspicuous disclaimer guidance from South Carolina&rsquo;s handbook statute.</div> <div>&nbsp;</div> <div>Next, employees&rsquo; attorneys try to use state law-based public-policy and defamation allegations to bypass federal law and federal court jurisdiction. In this case, the court read case law as it was written, applied case law to the facts of the case, and did not expand potential claims. From an employer&rsquo;s perspective, this outcome is a refreshing analysis that does not throw every decision an employer makes into lengthy and costly litigation.<br /> <br /> For more information on the BLR, click <a href="" target="_blank">here</a>. For more information on the South Carolina Employment Law Letter, click <a href="" target="_blank">here</a>. &nbsp;<br /> &nbsp;</div> </div> Supreme Court Decision Limits Patent Infringement Risk for Exporting a Single Component of a Multi-Component Invention27 Feb 2017 00:00:00 -0800 <p style="text-align: justify;"><span>On February 22, 2017, the Supreme Court held that there is no patent infringement when an entity supplies &quot;a <u>single</u> component&quot; from the United States for combination into &quot;a multicomponent invention&quot; outside the United States.[1].</span></p> <p align="center" style="text-align:center"><span style="font-variant-numeric: normal; font-variant-caps: small-caps; color: rgb(48, 48, 48);">Background</span></p> <p style="text-align:justify"><span style="color:#303030">This case involved U.S. Reissue Patent RE 37,984 (&quot;the '984 patent&quot;) [2], which is directed to a genetic testing kit comprised of five components. Promega Corporation (&quot;Promega&quot;) was the exclusive licensee of the '984 patent. Under a sublicense from Promega, Life Technologies Corporation (&quot;Life Technologies&quot;) manufactured the kit by supplying one component from the U.S. to the UK and then combining it with four other components in the UK to create the kit. A dispute arose when Promega alleged that Life Technologies exceeded the scope of the sublicense field of use and was therefore liable for infringing the '984 patent. </span></p> <p align="center" style="text-align:center"><span style="font-variant-numeric: normal; font-variant-caps: small-caps; color: rgb(48, 48, 48);">The Lower Courts</span></p> <p style="text-align:justify"><span style="color:#303030">Promega filed suit in the U.S. District Court for the Western District of Wisconsin and alleged that Life Technologies violated 35 U.S.C. &sect; 271(f)(1). The statute provides that one may be liable for patent infringement for providing from the U.S. &quot;all or a substantial portion of components&quot; to a patented invention if combined with other components outside the U.S.: </span></p> <p style="text-align:justify"><span style="color:#303030">Whoever without authority supplies or causes to be supplied in or from the United States all or a substantial portion of the components of a patented invention, where such components are uncombined in whole or in part, in such manner as to actively induce the combination of such components outside of the United States in a manner that would infringe the patent if such combination occurred within the United States, shall be liable as an infringer.</span></p> <p style="text-align:justify"><span style="color:#303030">At trial, the jury found that Life Technologies infringed the claims of the '984 patent and the infringement was willful.[3] Life Technologies then moved for judgment as a matter of law asking that the jury verdict be overturned because &quot;at component of all of the accused products...was supplied from the United States&quot; and that is insufficient to find infringement under &sect; 271(f)(1) because the statute requires the supply of multiple components.[4] The District Court agreed with Life Technologies and overturned the jury verdict. Promega appealed. On appeal, the Court of Appeals for the Federal Circuit reversed the District Court and reinstated the jury verdict while holding that &quot;substantial evidence supports the jury's finding that LifeTech infringed the ['984] patent under both 35 U.S.C. &sect; 271(a) and 35 U.S.C. &sect; 271(f)(1)&quot;.[5] Life Technologies then sought a writ of certiorari to the United States Supreme Court.</span></p> <p align="center" style="text-align:center"><span style="font-variant-numeric: normal; font-variant-caps: small-caps; color: rgb(48, 48, 48);">The United States Supreme Court</span></p> <p><span style="color:#303030">In its opinion, the Supreme Court noted that the purpose of &sect; 271(f)(1) is to &quot;expand the definition of infringement to include supplying from the United States a patented invention's components.&quot;[6] In its discussion, the Supreme Court focused on the terms &quot;components&quot; and &quot;substantial portion&quot; to determine whether a single component of a multi-component invention can form the basis of patent infringement under &sect;271(f)(1) and provided an elaborate analysis of the language of the statue.&nbsp; Ultimately, the Supreme Court held that a single component cannot constitute infringement under <a href="" target="_blank" shape="rect" alt=";crid=53487a19-ddf0-428c-bd3a-499ed0b1ec18&amp;pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5MXX-0191-F04K-F0MJ-00000-00&amp;pddocid=urn%3AcontentItem%3A5MXX-0191-F04K-F0MJ-00000-00&amp;pdcontentcomponentid=6443&amp;pdteaserkey=sr0&amp;ecomp=r89tk&amp;earg=sr0&amp;prid=f92c5548-978c-48bc-86b8-053828325cbd"><span style="color:windowtext;text-decoration:none;text-underline:none">&sect;271(f)(1)</span></a>.[7] Importantly, the Supreme Court specifically did <i>not</i> address how many components made in the U.S. and exported to be combined into a multi-component invention outside the US would amount to infringement under &sect;271(f)(1).&nbsp; Specifically, the Court said, &quot;[w]e do not today define how close to 'all' of the components 'a substantial portion' must be.&quot;[8]. Therefore, potential accused infringers should use their own best judgment in assessing the risk under &sect;271(f)(1). The Supreme Court's language provides some guidance:</span></p> <p style="text-align:justify"><span style="color:#303030">A supplier may be liable under &sect;271(f)(1) for supplying from the United States all or a substantial portion of the components (plural) of the invention, even when those components are combined abroad. The same is true even for a single component under &sect;271(f)(2) if it is especially made or especially adapted for use in the invention and not a staple article or commodity. We are persuaded, however, that when as in this case a product is made abroad and all components but a single commodity article are supplied from abroad, this activity is outside the scope of the statute.[9]</span></p> <p style="text-align:justify"><span style="color:#303030">While the risk of exporting a single component for combination outside the U.S. resulting in patent infringement has been reduced, the Supreme Court's nearly-unanimous decision in <i>Life Technologies</i> provides some insight. In many cases, manufacturers and suppliers should strongly consider consulting with an experienced patent attorney to gain insight into the risks of making or supplying one or more components from the United States that are later incorporated into a multicomponent invention outside the United States.</span></p> <div align="center" style="text-align:center"><span style="color:#303030"> <hr size="2" width="100%" align="center" /> </span></div> <div align="center"> <table border="0" cellspacing="0" cellpadding="0" width="544" style="width:408.0pt;" data-padding-converted="true"> <tbody> <tr> <td width="100%" style="width:100.0%;padding:0in 0in 0in 0in"> <p align="center" style="text-align:center"><img border="0" width="544" height="202" id="_x0000_i1026" src="" name="ACCOUNT.IMAGE.287" alt="" /></p> </td> </tr> </tbody> </table> </div> <div align="center" style="text-align:center"><span style="color:#303030"> <hr size="2" width="100%" align="center" /> </span></div> <p><span style="color:#303030">If you have questions, please contact the authors of this alert, <a href="" target="_blank" shape="rect" linktype="1" alt="" track="on">Douglas W. Kim</a>&nbsp;and <a href="" target="_blank" shape="rect" linktype="1" alt="" track="on">Lance A. Lawson, P.E.</a>, or a member of the firm's <a href="" target="_blank" shape="rect" linktype="1" alt=";LPA=574&amp;format=xml&amp;p=2358" track="on">Intellectual Property</a> and <a href="" target="_blank" shape="rect" linktype="1" alt=";LPA=577&amp;format=xml&amp;p=2358" track="on">Litigation</a> practice groups.</span></p> Kathryn Whitaker Named to Charleston's 40 Under 4027 Feb 2017 00:00:00 -0800 <p>McNair Law Firm is pleased to announce that its Director of Marketing and Business Development, Kathryn Whitaker, has been selected as a 2017 Forty Under 40 winner by the <i>Charleston Regional Business Journal</i>.</p> <p>Whitaker&rsquo;s extensive work in the legal marketing industry combined with her involvement and commitment to improving the Charleston community make her a strong asset to both. She is currently one of 12 members of the Board of Directors leading the 4,000-member, international Legal Marketing Association (LMA). She previously served as Southeastern Chapter President for the organization. In addition, Whitaker is a member of the Trident United Way Women&rsquo;s Leadership Council Steering Committee, a small group leader at Seacoast Church, and a parent volunteer at Jennie Moore Elementary School.&nbsp;</p> <p>&ldquo;Kathryn is a true leader in her profession and in the community. This award is a testament to her dedication to excellence, and we are very pleased to see her efforts celebrated,&rdquo; said Managing Shareholder David Tigges.</p> <p>Since 1998, Forty Under 40 has been comprised of men and women under 40 years of age who stand out professionally and through community involvement. The 2017 winners, nominated by the Charleston community and selected by a panel of judges, marks the 20<sup>th</sup> anniversary of the awards and will be recognized at the Forty under 40 event on Wednesday, May 10 at Alhambra Hall in Mount Pleasant. For more information or to reserve tickets, please visit&nbsp;<a href=""></a>&nbsp;.</p> The Business Visitor in the Current Immigration World22 Feb 2017 00:00:00 -0800 <p>While the Executive Order (&ldquo;the Order&rdquo;) issued by President Trump on January 27, 2017, and temporarily halted by the District Court in the Western District of Washington and subsequently by the Ninth Circuit Court of Appeals, has been highly publicized for temporarily banning certain foreign nationals from the United States, it could also could impact business travelers from a variety of countries in a number of ways. Foreign nationals often use the business visitor (B-1) visa to enter the United States for short periods to engage in business activities that do not rise to the level of gainful employment.&nbsp; The Order could lead to increased scrutiny of business visitors and delay the issuance of business visas at consular posts worldwide.&nbsp; Familiarity with the Order&rsquo;s effect on the business visitor visa will help businesses minimize the potential negative impact on their bottom line.</p> <p><u>Increased Scrutiny of B-1 Business Visitors</u></p> <p>The B-1 visa is a versatile tool that allows foreign nationals to participate in a myriad of activities in the United States such as:</p> <p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Engaging in commercial transactions not involving gainful employment;</p> <p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Negotiating contracts;</p> <p>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Consulting with business associates and/or attending company meetings;</p> <p>4.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Attending board of directors&rsquo; meetings of U.S. corporations as a member of the board;</p> <p>5.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Providing consulting services regarding the import or export of goods;</p> <p>6.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Installing, repairing, and maintaining equipment due under a contract; and</p> <p>7.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Training workers after the sale of commercial or industrial equipment in certain instances.&nbsp;</p> <p>Business visitors cannot generally be compensated from a U.S. source, perform services that would otherwise have been completed by a U.S. worker, or engage in work that primarily benefits a U.S. entity (as opposed to benefitting the foreign national or a foreign employer in furtherance of international trade).</p> <p>In order to obtain a business visitor visa, foreign nationals may be required to submit documentation demonstrating they are seeking to enter the United States for a proper purpose.&nbsp; The Order directs both the Department of Homeland Security and Department of State to review the information needed to adjudicate visa requests and could signify a heightened focus by the Department of State and Customs and Border Protection to ensure individuals entering the United States on a business visitor visa are doing so to engage in permissible activities.&nbsp; Businesses will need to ensure associated foreign nationals seeking to enter the United States on a B-1 visa are equipped with proper documentation both at the time of a visa interview and when attempting entry at a port-of-entry.&nbsp;</p> <p><u>Suspension of the Visa Interview Waiver Program</u></p> <p>The Order will also affect individuals whose business visitor visa is set to expire by suspending the Visa Interview Waiver Program.&nbsp; Under the Visa Interview Waiver Program, foreign nationals who had already been interviewed and issued a visa were at times permitted to renew their expiring visa without attending a second interview.&nbsp; The Visa Interview Waiver Program allowed thousands of individuals to avoid long delays associated with scheduling visa interviews at U.S. Consulates, particularly in the summer and holiday months.&nbsp; Businesses will need to plan ahead and should expect visa issuance delays as visa issuing posts are likely to become increasingly busy due to the additional interviews.&nbsp; Importantly, the Visa Waiver Program&mdash;which allows foreign nationals from certain countries to avoid business or visitor visa issuance &mdash;is not affected by the Order.&nbsp;</p> <p><u>Conclusion</u></p> <p>While the business visitor visa will continue to be utilized by foreign nationals seeking to conduct business in the United States, businesses will need to monitor the immigration climate as policies under the Trump administration are developed.&nbsp; Developing a sound immigration strategy early can help avoid small delays that could have long lasting business-related consequences.&nbsp; For questions on the business visitor visa or other immigration issues, please contact Melissa Azallion and Jonathan Eggert from McNair&rsquo;s immigration team at (843) 785-2171. &nbsp;</p>