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Latest News
| B&I Attorney Presides Over Ground–Breaking for New Rail Project |
| Brunswick, Maine |
| On August 2, 2010, Martin I. Eisenstein, Chairman of the Board of Directors of the Northern New England Passenger Rail Service, which operates the successful Downeaster passenger rail service, presided over a public ground–breaking ceremony in Brunswick, Maine that marked the launch of the construction and rehabilitation of a track extension from Portland to Brunswick. Other participants in the ceremony included Governor John Baldacci, First District Congresswoman Chellie Pingree, and Administrator Joseph Szabo of the Federal Railroad Administration. Maine is the first state in the country to begin construction on a rail project with federal stimulus money from the Obama administration’s High Speed, Intercity Rail Program. In his capacity as chairman, Eisenstein oversaw the application for this $35 million grant from the federal government, and is overseeing implementation of the construction and rehabilitation project. |
| Appellate Court to Consider B&I’s Amicus Brief for Internet Retailers in Patent Appeal |
| Federal Circuit Court of Appeals, Washington, DC |
| On July 14, 2010, the Federal Circuit Court of Appeals granted the motion of major Internet Retailers, Crutchfield, J.C. Penney, L.L. Bean, Newegg, and Overstock, to file a friend of the court brief in an appeal challenging the formulation of the current standard for awarding attorneys’ fees to prevailing defendants in patent cases. Peter J. Brann, David Swetnam–Burland, and Stacy O. Stitham wrote the brief for the Internet Retailers, which argues that the appellate court should restore balance to the federal statute that authorizes an award of attorneys’ fees to prevailing plaintiffs or defendants in “exceptional” cases. The Internet Retailers argue that in recent decisions the standard has been applied more favorably to plaintiffs than defendants with the result that e–commerce companies have found it hard to justify mounting vigorous (and expensive) defenses even to meritless lawsuits, defeating the purpose of the fee statute. |
| B&I Wins Summary Judgment for Talbots in Multi–million Dollar Class Action |
| United States District Court for the Western District of Washington, Tacoma, Washington |
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On July 7, 2010, David W. Bertoni and Stacy O. Stitham prevailed for Talbots on summary judgment in a multi–million dollar federal class action lawsuit. The plaintiff's counsel filed separate lawsuits against Talbots and two other large retailers, alleging that those companies—and their telemarketing vendor—violated federal and state telephone solicitation laws by delivering pre–recorded messages to their customers. Bertoni and Stitham moved for summary judgment for Talbots on the basis of novel legal theories, which the court endorsed in finding that (1) the plaintiff was barred from challenging the FCC’s “established business relationship” exemption; and (2) Talbots did not violate state law because the calls made were not for the purpose of initiating “telephone conversations,” as required by statute. The court dismissed all claims against Talbots with prejudice, claims for which the class action plaintiff sought tens of millions of dollars in statutory penalties of between $500 and $3,000 per individual call. |
| National Law Journal Interviews B&I on Patent Appeal |
| National Law Journal |
| In a July 7, 2010, article, “Major retailers and tech companies support Netflix over attorney fees,” the National Law Journal reported on Brann & Isaacson’s representation of major Internet retailers, Crutchfield, J.C. Penney, L.L. Bean, Newegg, and Overstock, in an appeal in the Federal Circuit Court of Appeals challenging the current standard for awarding attorneys’ fees to prevailing defendants in patent cases. As reported, the Internet retailers, represented by Peter J. Brann, David Swetnam–Burland, and Stacy O. Stitham, have sought leave to file a friend of the court brief supporting Netflix’s petition for a full panel hearing by the Federal Circuit, arguing that the same standard for awarding attorneys’ fees should apply to plaintiffs and defendants in order to deter meritless patent suits. “Because the scales are not balanced on the attorneys’ fees awards,” the article quotes Brann, “you don’t have the prospect of saying: ‘If we draw the line in the sand here, maybe we can deter others.’” |
| B&I Files Constitutional Challenge to Colorado Notice and Reporting Law for The Direct Marketing Association |
| United States District Court for the District of Colorado |
| On June 30, 2010, George S. Isaacson and Matthew P. Schaefer filed suit in federal district court in Colorado on behalf of The Direct Marketing Association challenging the constitutionality of a new Colorado law. The statute, which targets out–of–state retailers, purports to require those retailers to notify their Colorado customers of their obligation to self–report use tax and to require retailers to turn over confidential purchasing information regarding their Colorado customers to the Colorado Department of Revenue. In its complaint, the DMA, the leading global trade association of direct marketing businesses and nonprofit organizations, asserts that the Colorado statute discriminates against interstate commerce, exceeds the State’s regulatory authority over out–of–state businesses, violates the privacy rights of Colorado consumers, infringes the free speech and due process rights of retailers and consumers, and exposes confidential consumer information to the risk of unauthorized disclosure. |
| Corporate Counsel Cites B&I’s Supreme Court Amicus Brief for Internet Retailers |
| Corporate Counsel |
| In a July 6, 2010, article, “Patent Litigation Weekly: Surveying the Patent Landscape, Post–Bilski,” Corporate Counsel noted and quoted Brann & Isaacson’s amicus brief filed with the Supreme Court in Bilski v. Kappos on behalf of Internet retailers Crutchfield, Hasbro, Newegg, L.L. Bean, Overstock, J.C. Penney, and Talbots. In an interview with Corporate Counsel, Peter J. Brann, lead counsel for the Internet Retailers, noted that the Supreme Court’s failure to announce a clear test for the patentability of business method patents in Bilski leaves e–commerce businesses exposed to expensive patent lawsuits by non–practicing entities a/k/a “patent trolls” with their business model of acquiring patents for the sole purpose of generating licensing revenue. In effect, the article quoted Brann, “[b]usiness method patents amount to a tax on Internet commerce,” which the Bilski opinion did nothing to mitigate. |
| B&I Attorney Interviewed on Supreme Court’s Bilski Opinion by Internet Retailer |
| Internet Retailer |
| Peter J. Brann was interviewed by Internet Retailer for its June 29, 2010, article on the Supreme Court’s long-anticipated opinion in Bilski v. Kappos, addressing the hot button issue of business method patents. As reported, the Bilski opinion, which left the door open for business method patents, was not welcome news to e–commerce businesses which, Brann noted, “bear the brunt of business method patent lawsuits.” Brann advised retailers to take proactive steps to obtain indemnification from their software and computer service vendors, and to consider their options for obtaining insurance against such claims. Brann & Isaacson filed an amicus brief in Bilski on behalf of Internet retailers Crutchfield, Hasbro, Newegg, L.L. Bean, Overstock, J.C. Penney, and Talbots. |
| B&I Attorney Addresses Emerging Issues in Physician Employment Agreements |
| Family Medicine Department, Maine Medical Center, Portland, Maine |
| On June 22, 2010, Kevin R. Haley made a presentation to the Family Medicine Department of the Maine Medical Center in Portland on Physician Employment Relationship Issues. Haley addressed the particular commercial and legal issues that should be addressed in any physician’s employment agreement, including compensation and benefits, covenants not to compete, malpractice coverage, termination provisions, and ownership of patient lists and charts. He also addressed when and how legal counsel can assist physicians in negotiating or reviewing a prospective employment agreement before it is signed. |
| B&I Attorneys Selected by ABA for Treatise on Class Action Litigation |
| American Bar Association |
| David W. Bertoni and Stacy O. Stitham were selected by the American Bar Association to contribute a chapter for its upcoming treatise entitled A Practitioner's Guide to Class Actions. Scheduled for publication in the late summer of 2010 by the ABA's Tort Trial & Insurance Practice Section, the book covers class action procedures in all fifty states and under the Federal Rules of Civil Procedure. It also offers chapters on alternative dispute resolution and settlement of class action lawsuits. Brann & Isaacson's experience in class action cases includes federal and state court lawsuits involving state taxation, alleged unfair trade practices involving shipping and handling and insurance charges, and telemarketing. |
| B&I Attorneys Present Workshop at Maine Human Resources Conference |
| 15th Maine Human Resources Convention, Samoset Resort, Rockport, Maine |
| On May 14, 2010, Peter D. Lowe and Daniel C. Stockford put HR on the Hot Seat at the 15th Maine Human Resources Convention, Maine’s premier HR conference, attended by over 700 HR professionals from throughout the state. With the assistance of Peter Fitch, HR Director at Lee Auto Malls, Lowe and Stockford conducted a staged deposition of an HR professional in the context of a hypothetical sexual harassment case. Lowe and Stockford highlighted seven key areas for HR professionals to remember when dealing with sexual harassment claims, including note keeping/documentation, correct use of email and retention of email, staff training, investigations, maintaining personnel and medical records, employee confidentiality, and background screening. Conference attendees ranked HR on the Hot Seat highest among all 50 workshops offered at the conference. |
| B&I Attorneys Prevail in Illinois Appellate Court for Barnesandnoble.com |
| Appellate Court of Illinois, First Judicial District, Chicago, Illinois |
| On May 13, 2010, the First District of the Illinois Appellate Court granted a motion filed by Peter J. Brann and David Swetnam–Burland on behalf of Barnesandnoble.com, LLC and Barnes & Noble, Inc. to dismiss an appeal filed by a private law firm, Beeler, Schad & Diamond, P.C. under an Illinois whistleblower statute. The law firm had contended that Barnesandnoble.com violated the whistleblower law by failing to collect millions of dollars in use tax from its Illinois consumers. The State of Illinois intervened, assessed the merits, and agreed with Barnesandnoble.com that the case should be dismissed. Following the remand of an earlier appeal to evaluate the standing of the private law firm, the trial court also dismissed the claims against Barnesandnoble.com because they were based on information already published in the news media. The Appellate Court dismissed the appeal because the private law firm failed to challenge the State’s original dismissal of the case, rendering any other issues moot. After seven years of litigation, Brann and Swetnam–Burland have obtained dismissal or abandonment of this and other claims against their clients without the payment of any money to the private law firm that has filed over 60 of these lawsuits against online retailers. |
| B&I Attorneys Win Summary Judgment for EarthLink in Louisiana |
| Nineteenth Judicial District Court, East Baton Rouge, Louisiana |
| On April 26, 2010, Martin I. Eisenstein and David W. Bertoni won a summary judgment for EarthLink, Inc. in Louisiana district court. EarthLink had been assessed approximately $3 million in sales and use taxes by the State of Louisiana. The B&I legal team proved at the summary judgment stage that EarthLink did not have substantial nexus with Louisiana under the Commerce Clause of the United States Constitution. The trial judge also found that EarthLink was not a “vendor” under Louisiana state law, and that the Internet-related services that the company sold did not qualify as “taxable services.” The trial judge entered a judgment as a matter of law for EarthLink resulting in the dismissal of the multi–million dollar assessment. |
| Direct Marketing Association Retains B&I Attorney to Challenge New Colorado Statute |
| DMNews |
| As reported in DMNews, George S. Isaacson has been retained by the Direct Marketing Association to assist the DMA in mounting a constitutional challenge to new Colorado sales and use tax legislation aimed at Internet retailers. The new Colorado statute requires online sellers to report purchases made by Colorado residents so that the state can collect tax from them. The DMA—the leading global trade association of businesses and nonprofit organizations engaged in multi–channel direct marketing, which represents over 275,000 marketers—believes the statute violates the rule of law set forth by the Supreme Court in its 1992 opinion in Quill Corp. v. North Dakota, which established a bright–line test that a business must have a physical presence in a state before it can be subjected to sales and use tax collection or remittance obligations. |
| B&I Attorney Speaks on Trademark Law and Product Placement |
| Center for Law+Innovation, University of Maine Law School, Portland, Maine |
| Kevin R. Haley was invited by the Center for Law+Innovation at the University of Maine Law School to join a panel of trademark law experts in discussing the intersection of trademark law and product placement in the media. The panel discussion integrated audience stories about brand integration, product placement, and trademark clearance issues with discussion of the legal framework in which these activities take place. The panel was held on Friday, May 14, 2010, at 12:00 PM at the Moot Court Room on the law school campus in Portland. |
| Publishing Association Features B&I Attorney’s Article |
| Evangelical Christian Publishers Association |
| Martin I. Eisenstein’s article, Beware of the State Tax Implications of the New Agency Model for Sales of E–Books, is the feature article in the May issue of E–Link, an online publication of the Evangelical Christian Publishers Association. In his article, Eisenstein discusses the state tax implications of the “agency model” for pricing e–books. While the agency model provides some business advantages to publishers, the model creates potential state tax headaches as well under the sales and use, corporate income, and gross receipts tax laws of some states. Eisenstein urges e–book publishers to assess their state tax risks early, so that they can make informed business decisions on how to build and grow their e–book business. |
| B&I Attorney Offers Webinar on the State of State Income Tax Litigation |
| Strafford Publications |
| On April 15, 2010, Matthew P. Schaefer made a presentation on recent state tax litigation at a webinar on Apportioning Revenue in Corporate Tax Compliance for Strafford Publications. Schaefer addressed key issues arising in recent state income tax litigation regarding income apportionment, including such topics as what income must be apportioned; what income–generating activity takes place where; what count as costs of performance; and how to treat the income of trademark holding companies. Strafford will re–broadcast the webinar on April 27, 2010. |
| B&I Attorney Hosts Webinar for CFOs on State Tax Issues |
| ExecSense |
| On April 13, 2010, Martin I. Eisenstein hosted a webinar entitled, What CFOs Need to Know About the Impact of "Amazon" Tax Laws on the Obligation to Collect Sales Tax Regarding Internet and Catalog Sales. Eisenstein addressed the implications of new laws adopted by New York, Rhode Island, California, and Colorado that seek to place new tax burdens on Internet retailers and other direct marketers based on affiliate relationships. He also discussed measures such businesses should consider to reduce their exposure to state sales taxes. |
| B&I Attorneys Attend 25th Annual IP Law Conference |
| 25th Annual Intellectual Property Law Conference, Arlington, Virginia |
| David Swetnam–Burland and Stacy O. Stitham attended the 25th Annual Intellectual Property Law Conference from April 7 – 10, 2010. Hosted by the ABA's Section of Intellectual Property Law, the conference featured presentations by foremost authorities in intellectual property law, and covered recent developments in copyright, trademark, and patent law. Among the presenters were Chief Judge Paul R. Michel of the Federal Circuit Court of Appeals, David Kappos, Director of the U.S. Patent and Trademark Office, and Sarah T. Harris, Vice President & Chief IP Counsel for AOL, LLC. |
| B&I Attorneys Launch Legal Blog for Online and Direct Marketers |
| Eyes on eCom Law |
| Drawing on their long experience representing direct marketers and Internet retailers, George S. Isaacson, Martin I. Eisenstein, David W. Bertoni, Kevin R. Haley, Matthew P. Schaefer, and Barbara J. Slote, have launched a new blog, Eyes on eCom Law, devoted to new developments in the law as they apply to the online and direct marketing industry. Eyes on eCom Law will cover legal developments in the spheres of tax, privacy and data security, FTC compliance, state abandoned property laws, product safety, and consumer protection, as those developments impact direct and Internet sellers. |
| David Swetnam-Burland B&I's Newest Partner |
| Brann & Isaacson |
| We are pleased to announce that David Swetnam-Burland is now a partner in the firm. In addition to impeccable academic credentials, including high honors from Wesleyan University and graduating eighth in his class from the University of Michigan Law School, David has developed a national practice in complex intellectual property and tax litigation, in matters ranging from business patent lawsuits to constitutional challenges to sales and use tax assessments. A member of the Bar in the states of California, Maine, and Oregon, David served as a law clerk for Chief Judge Vaughn R. Walker of the United States District Court for the Northern District of California prior to joining Brann & Isaacson. |
| B&I Attorney Offers Employers Termination Tips |
| Maine Employment Law Letter |
| In this month’s Maine Employment Law Letter, Peter D. Lowe offers his 10 Tips for Termination. During this season of financial planning and employee reviews, Lowe identifies key "do's and don’t's" that can make a painful process more manageable and less risky. From making sure to review and follow existing policies (Tip #2), to considering the advantages of resignation over termination (Tip #6), to preparing a termination letter instead of a hasty phone call or e–mail (Tip #8), Lowe emphasize simple steps in the termination process that can help employers limit their legal risk, while treating departing employees with respect in a difficult time. |
| B&I Attorney Advises HR Professionals On Social Media |
| Central Maine Human Resource Association, Auburn, Maine |
| On March 16, 2010, Peter D. Lowe joined a panel of experts in Unraveling the Mysteries of Social Media for human resource professionals at the Central Maine Human Resource Association’s March meeting in Auburn. Lowe discussed what factors businesses should consider in striking a balance between the business rewards and legal risks of social media such as Facebook and Twitter, and the potential legal implications for employers of their employees' use of social media. |
| B&I Attorneys Host Industry Roundtable at NEMOA Spring Conference |
| New England Mail Order Association |
| Martin I. Eisenstein and Kevin R. Haley hosted an Internet round table on Friday, March 12, 2010, at the Spring Conference of the New England Mail Order Association in Boston. Eisenstein and Haley held a wide–ranging discussion with conference attendees on emerging legal issues facing direct marketers. Eisenstein spoke about developments in state tax law affecting online marketers, including the new New York, Rhode Island, North Carolina, and Colorado nexus laws regarding affiliate relationships, as well as developments in Michigan and Ohio. Haley addressed the Federal Trade Commission’s new guidelines regarding testimonials and endorsements, and associated traps and concerns for direct marketers raised by those guidelines. |
| B&I Attorneys Aid NRCM In Critical Victory |
| Natural Resources Council of Maine |
| The Natural Resources Council of Maine has named the passage and successful defense of Maine’s mercury switch recycling law as one of its top ten environmental victories of the past decade (2000–09). After the law’s passage, the Alliance of Automobile Manufacturers filed a court challenge in U.S. District Court in Portland. Benjamin W. Lund and Peter J. Brann, representing NRCM pro bono, joined the State in the successful defense of the law. By December 2004, an NRCM phone survey reported that almost 17,000 mercury auto switches had been collected for safe disposal. For their work in defense of the mercury switch law, Lund and Brann received NRCM’s volunteer of the year award for 2004. |
| B&I Attorney Hosts Webinar On Legal Opinion Letters |
| ExecSense |
| Martin I. Eisenstein hosted a webinar entitled, “Writing Legal Opinion Letters for Tax Lawyers” on Friday, March 12, 2010. Eisenstein discussed when and under what conditions an attorney should accept an engagement to draft an opinion letter, and how to properly draft opinion letters that achieve their purpose while minimizing legal exposure. Eisenstein addressed the impact of Statement of Financial Accounting Standards No. 5 and FASB Interpretation No. 48 on opinion letters drafted to assist management in establishing reserves for potential exposures to state tax assessments and audits. |
| B&I Attorneys Launch Intellectual Property Blog for Businesses |
| Eyes On IP |
| Drawing on their experience representing Internet retailers and other clients in copyright, patent, and trademark litigation from Maine to California, Peter J. Brann, David Swetnam–Burland, and Stacy O. Stitham have launched a new blog, Eyes on IP, devoted to new developments in intellectual property litigation of interest to the business community. As they wrote in their introduction, “Our goal at Eyes on IP is to provide brief, clear explanations of what’s going on in the world of IP litigation, and more importantly, how it affects you, the business reader. If we meet that goal, you’ll know what’s going on without having to speak (or think) like a lawyer.” |
| B&I Attorneys File Brief On Behalf of Conservationists and Sportsmen |
| Cumberland County Superior Court |
| David Swetnam–Burland and Stacy O. Stitham filed a friend of the court brief on behalf of a host of concerned environmental and conservation groups—including the Natural Resources Council of Maine (NRCM), Maine Rivers, Sebago Lake Anglers Association, Friends of the Presumpscot, Lakes Environmental Association, The Maine Congress of Lake Associations, Maine Council of Trout Unlimited, Western Foothills Land Trust, and concerned individuals—urging the Cumberland County Superior Court to affirm a decision of the Board of Environmental Protection to deny a permit that would have allowed the construction of a new dam on the Crooked River, the primary tributary of Sebago Lake, one of Maine's most pristine rivers, the source of drinking water for approximately 200,000 Maine residents in the greater Portland area, the home to a unique indigenous population of landlocked salmon, and a thriving sport fishery. Previously, Brann & Isaacson attorneys have received the annual award from NRCM and the National Volunteer of the Year Award from the National Wildlife Federation for their pro bono efforts, and Stacy serves as a member of the Board of Trustees for Maine Audubon. |
| B&I Attorney Speaks at the National Press Club |
| National Press Club, Washington, D.C. |
| George S. Isaacson participated in a panel discussion on state taxation of Internet sales on Friday, February 5, 2010 at the National Press Club in Washington, DC. The panel also included Stephen Kranz, a partner with Sullivan, Asbill & Brennan, Scott Peterson, Executive Director of the Streamlined Sales Tax Project, and Michael Mazerov, Senior Fellow at the Center on Budget and Policy Priorities; the moderator was Christopher Bergin, President and Publisher, Tax Analysts. Isaacson and the other panelists discussed so–called “Amazon” laws, enacted in New York, Rhode Island, and Massachusetts, which attempt to impose tax collection obligations on out–of–state retailers based on third party affiliate relationships, and whether Congress should enact legislation to expand the scope of state taxing authority over out–of–state retailers. |
| B&I Attorney On Winning Team in International Child Custody Case |
| Maine Lawyers Review |
| Daniel A. Nuzzi features in an article in the January 28, 2010, issue of Maine Lawyers Review, entitled “International Child Custody Cases Heard in Maine Court,” about his work as co–counsel in a recent international child custody trial held in federal court in Portland, Maine. Nuzzi, serving as local counsel to Stephen J. Cullen of Miles & Stockbridge, assisted in the successful representation of an Australian father in a Hague Convention International Child Abduction action. In the Maine Lawyers Review article, Nuzzi describes the role of the Hague Convention in resolving international custody disputes: “The question is which court gets to decide the issue. … The purpose of the Hague Convention is to preserve the status quo prior to a wrongful child abduction," he explained, so custody can be decided in the appropriate venue. |
| B&I Attorneys Named Super Lawyers and Best Lawyers In America |
| Super Lawyers Magazine and Best Lawyers In America 2010 |
| George S. Isaacson and Martin I. Eisenstein have been named New England Super Lawyers by Super Lawyers magazine, which compiles an annual list of top-rated lawyers that achieve a high level of peer recognition, demonstrate high ethical standards, and make significant achievements in their fields. Isaacson and Eisenstein have also again been selected for inclusion in The Best Lawyers in America in 2010 in the fields of commercial litigation (Isaacson) and tax law (Eisenstein). |
| B&I Attorney Speaks on Emerging Employment Issues |
| Maine Municipal Association, Maine School Management Association, and Maine Rural Water Association |
| Peter D. Lowe recently presented an employment law program Is It Any of Your Business? to the annual conferences of the Maine Municipal Association, the Maine School Management Association, the Maine Rural Water Association, and to the Maine HR Conference. The workshop focuses on employee conduct outside the workplace, such as social networking, and explores the scope of management's authority over and responsibility for such conduct. Lowe will give this presentation to the Maine State Bar Association's Annual Conference this month. Also this month, Lowe was the invited presenter for the Central Maine Human Resource Association's Annual Employment Seminar and the Kennebec Valley Human Resource Association's 2009 Year in Review. |
| B&I Attorney Appointed to Newly Created Probate and Trust Law Advisory Committee |
| Supreme Judicial Court of Maine |
| Martha E. Greene has been appointed by the Supreme Judicial Court of Maine to a three–year term on the Probate and Trust Law Advisory Commission. The Commission, established by a 2009 statute, 18–A M.R.S. §§ 1–801 to 1–805, consists of one Superior Court Justice, two Probate Court Judges, five practicing attorneys, a representative appointed by the Governor, and the Attorney General or her designee. The Commission will advise the Legislature on the current state of Maine probate and trust law, and make recommendations for future improvements. |
| B&I Attorney Selected as Visiting Lecturer On The Role of the Attorney General |
| Columbia University Law School, New York |
| Peter Brann will be a Visiting Adjunct Lecturer at Columbia Law School this semester, co-teaching a class entitled "The Role of the Attorney General." The course covers the dramatically expanded powers of state attorneys' general in a wide range of matters including securities regulation, antitrust law, consumer protection, Internet privacy, environmental reviews, and labor law enforcement. Brann, a partner whose practice focuses on complex civil and intellectual property litigation, was formerly the State Solicitor in Maine, where, among things, he won the National Association of Attorneys General award for Best Brief in the U.S. Supreme Court. |
| Brann & Isaacson the Voice of Major Internet Sellers In Landmark Patent Case |
| United States Supreme Court |
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The United States Supreme Court has agreed to review a case that is likely to have wide-sweeping consequences for the direct marketing industry. At issue in Bilski v. Kappos is whether "business methods" patents -- which have led to a cottage industry of multi-million dollar lawsuits against Internet sellers -- are valid. Brann & Isaacson has filed an amicus curiae brief in this landmark Supreme Court case on behalf of several major retailers (Crutchfield, Newegg, L.L. Bean, Overstock, J.C. Penney, Talbots, and Hasbro) describing the serious problems that business method patents cause for Internet retailers. Joining this brief are four of the 30 largest Internet retailers in the country. Preparing the brief were Peter Brann, David Swetnam-Burland, and Stacy Stitham, who have represented clients in intellectual property cases up to and including trial in federal courts in Arizona, California, Georgia, Idaho, Illinois, Maine, New Jersey, New York, Ohio, Oregon, Texas, and Washington. Prior to joining Brann & Isaacson, Peter served as Solicitor for the State of Maine, receiving the National Association of Attorneys’ General award for Best Brief filed by a State in the United States Supreme Court in 1998-99. |
| PeoplePC Prevails On Printed Sales Message Exemption |
| California Court of Appeal |
| On September 4, 2009, Brann & Isaacson (Martin Eisenstein and David Swetnam–Burland) prevailed in the California Court of Appeal for its client, Internet service provider PeoplePC, Inc., a subsidiary of EarthLink , Inc. In a unanimous decision, the appellate panel held that promotional CDs sent by PeoplePC to prospective customers were exempt from use tax under California’s printed sales message exemption, granting PeoplePC’s refund and awarding the company its costs on appeal. The Court of Appeal rejected the position of the California's Board of Equalization (the state agency responsible for administration of sales and use taxes) that a printed sales message must be printed on paper. Even though the Court recognized that sales tax exemptions are construed against the taxpayer, the Court nevertheless found in favor of PeoplePC. |
| Maine Law Barring the Collection and Use of Information From Minors |
| Maine Legislature |
| On September 12, 2009, a new Maine law targetting the collection of personal information from minors for marketing purposes -- as well as the transfer or sale of such information -- is set to go into effect. Unlike the federal Children's Online Privacy Protection Act ("COPPA"), the Maine law is not limited to online information collection and information concerning children under the age of thirteen. Maine's law applies to "minors," which is defined elsewhere as any person under the age of eighteen, and applies to information collected through any channel. The law provides for enforcement both by the Maine Attorney General and private individuals through civil actions (raising the possibility of class actions), with an award of attorneys fees to the plaintiff upon proof of a violation. Unresolved is whether the law is preempted by COPPA. "Under some parts of this law, liability can arise even if you are unaware that the personal information you've obtained -- including names and addresses -- was provided by or relates to someone under the age of eighteen," according to David Bertoni, a partner at Brann & Isaacson. Update: The Office of the Attorney General in Maine has indicated that it will not be enforcing this statute because of concerns about its constitutionality. However, this does not prevent private citizens from filing suit for violations of this law. |
| Supreme Court of Iowa Rules In Favor of AOL On Communications Services |
| Supreme Court of Iowa |
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On August 21, 2009, Brann & Isaacson (Martin Eisenstein, Peter Brann, and David Swetnam-Burland) prevailed before the Iowa Supreme Court for its client, Internet service provider AOL LLC. The case involved the assessment of over $5 million by the Iowa Department of Revenue of sales tax and interest on the provision of AOL’s online service to Iowa residents. AOL established at trial that its service was purely an interstate service, and, therefore, the Iowa tax on communication services was not applicable. |
| ALJ Strikes Tax On Payments Related To Display Racks |
| Florida Division of Administrative Appeals |
| On August 20, 2009, Brann & Isaacson (Martin Eisenstein and Stacy Stitham) successfully litigated a case against the Florida Department of Revenue on behalf of its client, Consumer Source, Inc., a public company that is the largest distributor of free publications in the United States. The administrative law judge found that the lion’s share of the payments made by Consumer Source to retailers in order to place display racks in the retail stores was for the intangible right of exclusivity, which is not subject to the Florida sales and use tax on rental property. |
| New Safety Rules for Children's Products |
| Consumer Products Safety Commission |
| Effective August 2009, there are new federal safety requirements for children's products, including a drop in acceptable lead limits from 600 parts per million (ppm) to 300 ppm for substrates and from 600 ppm to 90 ppm for paint and similar surface coatings (which also applies to certain kind of furniture), a requirement for tracking labels, and mandatory display of product safety warnings in printed advertising and catalogs. "The Consumer Product Safety Improvement Act, which was enacted by Congress last year, has series of requirements that continue roll out over time," according to David Bertoni, a Brann & Isaacson partner.. "The CPSC has been actively issuing advisory statements and regulations in an effort to implement the law and adjust for its impact on businesses." |
| How to Let Employees Leave with Dignity (and Why That Matters to Employers) |
| Peter D. Lowe |
| In its August 2009 issue, HR Insight, a national newsletter for HR professionals, selected an article written by employment lawyer Peter Lowe as its lead article for its latest edition,which focuses on employment law issues arising from the recession. Peter's article advises management on handling sensitive issues arising from down-sizing, including the giving of reasons for an employee's selection, security measures on an employee's last day, and the giving of references. |
| Connecticut Court Upholds Finding of No Nexus |
| Connecticut Superior Court |
| On May 27, 2009, Brann & Isaacson, with George Isaacson and David Bertoni representing Scholastic Book Clubs, Inc., successfully fended off a Motion for Reconsideration filed by the Department of Revenue Services. The Department sought to overturn an April 9, 2009 decision in which the Connecticut Superior Court found Scholastic Book Clubs lacked the requisite physical presence in the state to require it (1) to register for, collect, and remit the state's sales and use taxes; and (2) pay a use tax on promotional materials mailed to customers located in Connecticut. |
| Seattle Rules In Favor of barnesandnoble.com llc on B&O Tax Assessment |
| City of Seattle Hearing Examiner |
| On April 15, 2009, a Hearing Examiner for the City of Seattle heard and rejected the City's claim that barnesandnoble.com llc owed business and occupation taxes on the basis of the presence of Barnes & Noble Booksellers, Inc. retail stores in Seattle. In so doing, the hearing officer agreed with David Bertoni of Brann & Isaacson and rejected a "substantial economic presence" theory of nexus. |