FROM OUR MANAGING PARTNER
Summer 2017 Newsletter

STEPHEN L. GOLAN

Managing Partner

It’s been an exciting summer. From natural phenomena to a volatile world stage, it can be challenging to stay abreast of what you need to know to secure your personal and business interests. We at Golan Christie Taglia will always do our best to guide and support you, and are pleased to be able to share the latest issue of our newsletter. Inside, you will learn about:

AN ADULT CHILD’S PRIVACY PROTECTIONS THAT RESTRICT PARENTAL ACCESS
Nancy Franks-Straus walks through scenarios that parents need to consider, and steps they might choose to take to avoid allowing privacy protections to hinder access to an adult child’s important medical, financial, and educational information.

NEW REPORTING REQUIREMENTS FOR USCIS AND OSHA
To avoid potential discrimination claims, employers are advised to become familiar with, and adhere to, the revised Form I-9. New injury reports guidelines became effective on January 1, 2017. Is your business in compliance?

U.S. SUPREME COURT DECISIONS THAT MAY HAVE SURPRISING EFFECTS ON YOUR BUSINESS
Four intellectual property decisions came out of the U.S. Supreme Court’s 2016-2017 term. Beverly Berneman provides insight on how these decisions could impact your business, even if you do not foresee an intellectual property dispute.

We are also happy to announce that two of our paralegals, Jason Keuther and Tom Stephenson, along with Associate, Neil P. Johnson, will be presenting at the Illinois Paralegal Association’s Annual Conference in November. Paralegals are an indispensible part of the legal system. And, in our firm, we value them highly and rely on them for their critical thinking skills and advanced legal knowledge. The work they do is fundamental to our success, and I continue to be impressed with the level of expertise our paralegals demonstrate.

Fall is just around the corner; we hope you enjoy it! Golan Christie Taglia remains here for you—whenever you need us.

Stephen L. Golan

CORPORATE LAW & GOVERNANCE
Understanding Privacy Protections For Children Age 18 And Over

NANCY FRANKS-STRAUS

Partner

Powers of Attorney can help ensure parents’ access to their adult child’s medical, financial, and educational information isn’t restricted.

Families should have conversations to determine what steps are necessary to prepare before circumstances arise.

When a child turns 18, under Illinois law he or she is considered to be legally an adult. As an adult, the child is given privacy protections that restrict a parent’s access to the child’s medical, financial, and educational information. If you have a child who has attained age 18 or will do so shortly, and the child is a dependent or primarily supported by you, you should consider having certain documents prepared that will enable you to receive information concerning your child’s health care, financial, and education matters that you otherwise would not be permitted to obtain.

Consider the situation where Josie, a nineteen-year-old college student, was in a serious car accident and rushed to the hospital. When her mother inquires as to Josie’s prognosis, she is shocked to learn that she has a very limited right to know about her daughter’s condition and does not have the right to give direction for Josie’s care. This is the case even though Josie’s medical insurance and medical expenses are paid for by her mother and/or if Josie is a dependent. These privacy restrictions are imposed by the Health Insurance Portability and Accountability Act (HIPAA), which places a high value on the privacy of an adult’s medical records.

The solution is to have a Health Care Power of Attorney prepared for, and signed by, the child. The power of attorney is a legal document in which the child names an adult to serve as his or her health care “Agent.” The Agent is authorized to make health care decisions for the child and may be given the right to access the child’s medical records. Had Josie had an effective Health Care Power of Attorney naming her mother as her agent, the hospital and medical staff would have been permitted to provide her with information concerning Josie’s care.

Another circumstance where a young adult has certain privacy protections is with his or her financial matters. For example, if a child has a bank account in his or her own name, a parent is not entitled to obtain information or conduct any business on behalf of the child relative to that account. Frequently a child needs a parent’s assistance to pay bills, negotiate and sign contracts, loan agreements, file tax returns, access bank accounts, etc. The solution is to have a Property Power of Attorney prepared for, and signed by, the child that authorizes an adult Agent to conduct business on the child’s behalf.

Who should the child name as his or her agent? While often a parent is named, there may be circumstances where the child wishes to appoint an adult other than his or her parent, or does not want to authorize the parent to have access to medical information or financial information. In these circumstances, if the child is a dependent, the parent often can engage in some gentle negotiation to convince the child of the advisability of naming the parent as his or her agent.

If a child is college bound, there are additional laws that may restrict a parent’s ability to obtain the child’s educational records. The Family Educational Rights and Privacy Act (FERPA) protects the privacy of a student’s educational records. “Educational records” are written records directly related to a student that are maintained by an educational institution, and include a student’s grades, attendance, behavior, etc. Although the general rule is that a school cannot divulge a student’s educational records to anyone without the child’s consent, a major exception exists if the child is a dependent for federal income tax purposes; however, many schools require written confirmation that a child is, in fact, a dependent before they will release otherwise confidential information. In addition, some states have additional laws that apply to education and privacy, so it is important to understand the laws of the state where the child is attending school.

As families consider all the tasks necessary to plan for a child to reach young adulthood and attend college, conversations should be had between parent and child addressing the health, financial, and educational records privacy concerns. These discussions will help determine whether powers of attorney or other documents should be prepared to authorize a qualified adult to access the child’s otherwise protected information and/or to have the authority to make decisions on the child’s behalf.

Do the New OSHA Injury Reports Requirements Apply to You?

LAURA A. BALSON

Partner

MARGARET A. GISCH

Partner

In July 2017, the U.S. Occupational Safety and Health Administration (also known as OSHA) issued a press release related to new deadlines for electronic submission of OSHA forms regarding workplace injuries. Generally, employers with twenty or more employees (in certain industries) are required to submit their completed Form 300A for 2016 by December 1, 2017. In 2018, all covered employers must submit their completed Form 300A, 300 and 301 for 2017 by July 1, 2018.

The new requirement became effective on January 1, 2017, but the new reporting requirements are being phased in over a two-year period. Beginning in 2019, and every year thereafter, covered establishments must submit the information by March 2. OSHA will provide a secure website that offers three options for data submission.

The list of covered industries include all of the following:

  • Construction
  • Manufacturing
  • Wholesale trade
  • Automotive parts, accessories, and tire stores
  • Furniture stores
  • Home furnishings stores
  • Building material and supplies dealers
  • Lawn and garden equipment and supplies stores
  • Grocery stores
  • Specialty food stores
  • Department stores
  • Other general merchandise stores
  • Used merchandise stores
  • Direct selling establishments
  • Scheduled air transportation
  • General and specialized freight trucking
  • Urban transit systems
  • Interurban and rural bus transportation
  • Taxi and limousine service
  • School and employee bus transportation
  • Charter bus industry
  • Other transit and ground passenger transportation
  • Scenic and sightseeing transportation, land
  • Support activities for air, rail, water, or road transportation
  • Couriers and express delivery services
  • Local messengers and local delivery
  • Warehousing and storage
  • Cable and other subscription programming
  • Lessors of real estate
  • Automotive equipment rental and leasing
  • Consumer goods rental
  • General rental centers
  • Services to buildings and dwellings
  • Waste treatment and disposal
  • Remediation and other waste management services
  • Other ambulatory health care services
  • General medical and surgical hospitals
  • Psychiatric and substance abuse hospitals
  • Specialty (except psychiatric and substance abuse) hospitals
  • Nursing care facilities
  • Residential mental retardation, mental health, and substance abuse facilities
  • Community care facilities for the elderly
  • Other residential care facilities
  • Community food and housing, and emergency and other relief services
  • Vocational rehabilitation services
  • Performing arts companies
  • Spectator sports
  • Museums, historical sites, and similar institutions
  • Amusement parks and arcades
  • Gambling industries
  • Traveler accommodations
  • Rooming and boarding houses
  • Special food services
  • Dry-cleaning and laundry services

If you have questions or need additional information, please contact an employment attorney at Golan Christie Taglia, LLP.

Be Prepared to Use New I-9 Form in September

United States Citizenship and Immigration Services (USCIS) released a revised version of Form I-9, Employment Eligibility Verification, on July 17, 2017. Employers can use this revised version or continue using Form I-9 with a revision date of 11/14/16 N through Sept. 17, 2017. On Sept. 18, 2017, all employers must use the revised form with a revision date of 07/17/17 N. Employers must continue following existing storage and retention rules for any previously completed Form I-9.

The new version of the form includes revisions to the list of acceptable documents that can be presented by an employee to verify identity and eligibility to work in the U.S. In order to avoid potential discrimination claims, employers are advised to carefully adhere to the list of acceptable documents on the most updated Form I-9, and not to provide any instructions to employees, other than those included with the form, about which documents to provide. USCIS also included these changes in a revised Handbook for Employers: Guidance for Completing Form I-9 (M-274), which is available for download through the USCIS website.

Four Significant U.S. Supreme Court Decisions That Could Impact Your Business

BEVERLY A. BERNEMAN

Partner

The U.S. Supreme Court’s recent term ended with four significant Intellectual Property decisions. Each of these decisions will have long-term consequences for business owners and their legal counsel. However, the decisions did not address all of the relevant issues and concerns.

Patents

TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S.Ct.1514 (2017).

Background: Kraft Foods, a Delaware corporation, brought suit against TC Heartland, an Indiana corporation, in Delaware. TC Heartland challenged the Delaware Court’s personal jurisdiction. The Delaware Court ruled against TC Heartland. TC Heartland filed a writ of mandamus with the Federal Circuit Court of Appeals. The Federal Circuit denied the petition.

Holding: The U.S. Supreme Court reversed the lower courts holding that the Delaware Court did not have jurisdiction over TC Heartland. The Patent Act fixes civil actions for patent infringement (1) in the judicial district where the defendant resides, or (2) where the defendant has committed acts of infringement and has a regular and established place of business. Justice Thomas, writing the unanimous opinion, focused on the place of residence prong of the relevant section of the Patent Act to hold that the Delaware Court did not have personal jurisdiction over TC Heartland.

Take-Away: While this case involved litigants from Delaware and Indiana, this ruling is going to have far-reaching consequences. Until now, patent owners brought infringement cases in seemingly patent owner favorable venues such as Delaware and the Eastern District of Texas. This decision will help reduce abusive forum-shopping and, hopefully, reduce the cost of defending infringement cases.

SCA Hygiene Prod. Aktiebolag v. First Quality Baby Prod., LLC, 137 S. Ct. 954, 197 L. Ed. 2d 292 (2017)

Background: SCA brought suit against First Quality for patent infringement involving adult incontinence products. The lower court granted summary judgment to First Quality on the basis of a laches defense. The Federal Circuit affirmed in part and reversed in part.

Holding: Citing a similar ruling in a copyright case from last year’s term, the U.S. Supreme Court, Justice Alito writing for the majority, held that laches cannot be used as a defense to an infringement action that was brought within the six-year statute of limitations in the Patent Act. The Supreme Court reversed the Federal Circuit Court of Appeals and the case was remanded.

Take-Away: Not everyone is happy with the decision, including Justice Breyer, who filed a dissenting opinion. An unreasonable delay in bringing suit can have a detrimental effect on a defendant. Time has the unhappy consequence of affecting witnesses’ memories and the availability of evidence.

Copyrights

Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002, 197 L. Ed. 2d 354 (2017)

Background: Varsity Brands manufactures and sells cheerleading uniforms. It holds over 200 copyrights for the designs on the uniforms. Star Athletica also manufactures and sells cheerleading uniforms. Varsity Brands sued Star Athletica for copying five Varsity Brands designs. The trial court granted Star Athletica’s motion for summary judgment on the grounds that the designs were not eligible for copyright protection. The Court of Appeals for the Sixth Circuit reversed the trial court.

Holding: The U.S. Supreme Court affirmed the Sixth Circuit and remanded. Justice Thomas writing for majority held that the Varsity Brands designs were eligible for copyright protection. The Supreme Court distinguished the useful object (clothing) from the two- or three-dimensional work of art separate from the useful article (the copyrighted chevron designs on the Varsity Brands uniforms).

Take-Away: This case resolves a long-standing dispute among lower courts regarding the separability between clothing and decoration. Some courts held that decoration is integral to clothing design and cannot be separated for copyright protection. Other courts held that decoration on clothing can have a separate existence, making it eligible for copyright protection. Critics of the decision have observed that Justice Thomas adhered to a strict reading of the Copyright Act, and failed to give any further guidance on how to apply the test for separability.

Trademarks

Matal v. Tam, 137 S. Ct. 1744 (2017)

Background: Simon Schiao Tam applied to register “THE SLANTS” as a trademark for a musical band whose members are of Asian descent. The USPTO refused the registration on the grounds the mark was disparaging of people of Asian descent. The Trademark Trial and Appeal Board affirmed the refusal. The Federal Circuit Court of Appeals initially affirmed the refusal to register. However, after an en banc rehearing the Federal Circuit reversed, vacated the refusal, and remanded the matter to the USPTO.

Holding: The U.S. Supreme Court affirmed the Federal Circuit. Justice Alito writing for the Court held that the Lanham Act’s prohibition against registration of disparaging trademarks is facially invalid because it violates First Amendment Free Speech.

Take-Away: A trademark is commercial speech. It is a source or product identifier. The opinion gives broad First Amendment protection to trademarks as commercial speech. However, the Supreme Court, almost in passing, acknowledged that not all speech is protected. Even so, a restriction of speech must be narrowly drawn and serve a substantial purpose. The USPTO has amended its examining procedure to accommodate the holding in this case. However, the USPTO is continuing the fight in another case, In re Brunetti, which is pending before the Federal Circuit. Brunetti seeks to register the word “FUCT” which the USPTO rejected as containing scandalous material. Another open question is the fate of the Washington Redskins’ trademark. The USPTO cancelled the mark as disparaging of Native Americans.

Conclusion

Each of these cases has implications beyond the specific holdings. Jurisdiction for an intellectual property lawsuit can critically affect the decision to bring suit at all. The defenses available to a defendant can determine whether it is better to defend or settle an infringement suit. The limits of copyright and trademark law can affect the value of the intellectual property, which is why these decisions may impact your business, even if you are not anticipating an intellectual property dispute.

Announcements
Golan Christie Taglia’s Paralegals Presenting at Annual Conference

For almost forty-five years, the Illinois Paralegal Association (IPA) has been advancing the paralegal profession, and providing a channel for communication among members of the paralegal profession, the legal community, civic and professional organizations—and supporting the continuing education of paralegals.

On November 1, 2017, IPA will hold its 2017 Fall Education Conference and 45th Anniversary celebration. Golan Christie Taglia’s Real Estate Paralegal, Jason Keuther, will be presenting The Assessment Appeal Process: Assessment Cycle, Real Estate Tax Burden and the benefits of appeals and Bankruptcy Paralegal, Tom Stephenson, will be presenting Mastering Automation in Microsoft Word and the Benefits of Document Automation for Workflow Efficiency. In addition, Golan Christie Taglia Associate, Neil P. Johnson, will be presenting The New Amendments to Federal Rule of Evidence 902 to discuss the new additions to Rule 902, which go into effect on December 1, 2017. This session will thoroughly examine new requirements and the impact these amendments are expected to have on the legal practice.

For more information on this event, go to www.ipaonline.org.