Third Circuit Upholds FTC Cybersecurity Standards

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The Third Circuit recently clarified the requirements for an “unfair practices” claim under §45 (a) of the Federal Trade Commission Act. FTC v. Wyndam Worldwide Corp., 799 F.3d 236 (3d Circ. 2015). In this case, the FTC brought claims of unfair and deceptive practices against Wyndham Worldwide Corporation (Wyndam) following data breaches of Wyndam’s computer systems. Wyndam is a hospitality company that franchises and manages hotels and timeshares through subsidiaries. In 2008 and 2009, Wyndam’s systems were hacked resulting in the theft of hundreds of thousands of consumers’ personal and financial information and over $10.6 million dollars in fraudulent charges. The FTC filed suit alleging that its failure to protect consumers’ information and deception regarding its privacy policy amounted to unfair practices. The District Court denied Wyndam’s motion to dismiss, and the Third Circuit ruled that the FTC had the authority to regulate cybersecurity under the unfairness prong of § 45 (a).

Under § 45 (a), the Federal Trade Commission (FTC) cannot declare an act to be an unfair practice unless it meets the following requirements: (1) It must be substantial; (2) it must not be outweighed by any countervailing benefits to consumers or competition that the practice produces; and (3) it must be an injury that consumers themselves could not reasonably have avoided. While the statute lists these requirements, it does not answer whether these are the only requirements for finding unfair practices. Wyndam argued that the necessary conditions for unfair practices go beyond the listed elements based on the plain meaning of the word “unfair.” Wyndam further argued that practices are only “unfair” if they display unethical behavior, or are marked by injustice, partiality, or deception. The Court rejected this argument because it is unnecessary to read the plain meaning of “unfair” into the statute. Applying this rationale to this case, the Court stated that “a company does not act equitably when it publishes a privacy policy to attract customers who are concerned about data privacy, fails to make good on that promise by investing in adequate resources in cybersecurity, exposes its unsuspecting customers to substantial financial injury, and retains the profits of their business.”

However, Wyndam argued that even if cybersecurity would be covered by § 45 (a) as it was originally enacted that recent congressional provisions alter this meaning to exclude cybersecurity. The Court rejected this argument based on the FTC’s history of regulatory authority over cybersecurity issues. The Court found that while the FTC had not previously required companies to adopt fair information practice policies that earlier policy was not inconsistent with the FTC currently bringing unfairness actions against companies causing harm to consumers through inadequate cyber security practices. Furthermore, the Court also rejected Wyndam’s claims that it did not have fair notice of the FTC cybersecurity standards. The Court affirmed the District Court’s decision finding that Wyndam’s proposed requirements in addition to those listed in the statute were not persuasive.

For more information, call our business lawyers in Philadelphia at the Law Offices of Sidkoff, Pincus & Green at 215-574-0600 or contact us online.

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Employee Fails to Prove That Union Acted Arbitrarily or in Bad Faith When Refusing to Arbitrate His Termination

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Recently, the United States District Court for the Eastern District of Pennsylvania ruled in favor of an employer’s motion for summary judgment denying Plaintiff’s hybrid claim for breach of contract/unfair representation. Smokowicz v, Graphic Packaging Int’l, Inc., 2018 U.S. Dist. LEXIS 94099 (E.D. Pa. 2018). Plaintiff Micheal D. Smokowicz (“Smokowicz”) brought claims for breach of contract against his former employer, Graphic Packaging International, Inc. (“Graphic”) for their alleged violation of § 301 of the Labor Management Relations Act; and a claim against his union for failure to provide fair representation under 29 U.S. C. § 159(a).  In order for a plaintiff to succeed on a § 301/fair representation claim, the plaintiff must prove both breach of contract and the union’s failure to provide fair representation. The Court determined that Smokowicz failed to prove that the Union breached its duty of fair representation; and thus, the Court was not required to rule on the employer’s alleged breach.

In this present matter, Smokowicz was involved in multiple incidents leading up his termination. Before Smokowicz’s termination, Graphic attempted to terminate him for violating the company’s anti-harassment and violence policy. In lieu of terminating Smokowicz, his union was able to negotiate a Last Chance Agreement which allowed for Smokowicz to return to his previous position under the condition that any future violation of the standard of conduct will be cause for termination. Three years following the Last Chance Agreement Smokowicz was terminated for mislabeling packages. In an attempt to resolve the issue, Smokowicz’s union attended numerous meetings with the Human Resources Department and supervisors at Graphic with the goal of allowing Smokowicz to return to work. After days of negotiating and pleading with Graphic, the Union informed Smokowicz that it believed that it could not prevail in arbitration and that it would not proceed any further with a grievance.

The Court ruled that in order for a claim that a union breached its duty of fair representation, the plaintiff must present evidence demonstrating that the union’s conduct was arbitrary, discriminatory, or in bad faith. Previous precedents have defined “arbitrary conduct” as being irrational and being without a rational basis or explanation. Further, mere ineptitude or negligence is not sufficient to establish conduct is “arbitrary.”  Under this standard, even if a more experienced representative would have used a different strategy or achieved a different result, the plaintiff cannot successfully claim that the union acted arbitrary.

The standard for bad faith is much more ambiguous, and findings of bad faith “require more than unsupported allegations.” The Third Circuit has held that a plaintiff must show that “the union and its representatives harbored animosity towards the employee; and . . . that animosity manifested itself as a material factor in the union’s handling of the employee’s grievance.” The plaintiff, when claiming bad faith, must present evidence in the record to support such allegations of animus and that the union’s animus towards the plaintiff manifested itself in the handling of the plaintiff’s employment grievance.

Even when viewing the facts in the most favorable light to Smokowicz, the Court determined that he was unable to demonstrate that the Union’s conduct was without a “rational basis or explanation,” or that the Union manifested any animosity towards Smokowicz. The Union had already successfully negotiated Smokowicz’s previous termination, and although it did not pursue a formal grievance regarding his second termination; the Union did not act in bad faith or breach its duty to provide fair representation.

At the Law Offices of Sidkoff, Pincus & Green our experienced Philadelphia employment lawyers handle many types of legal matters, including contract law. If you are interested in having a consultation with one of our Philadelphia business lawyers, please call us at 215-574-0600 or contact us online.

District Court Approves AT&T and Time Warner Merger

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On June 12, 2018 the District Court for the District of Columbia released the much anticipated opinion in the AT&T and Time Warner merger case. United States v. AT&T Inc., et al., No. 17-2511 RJL (D.D.C. 2018). Justice Richard Leon approved the historic “marriage” in a 172 page opinion that was rife with exclamatory statements, much to the Government’s chagrin.

In this case, the Government sought to enjoin the merger based on Section 7 of the Clayton Act, 15 U.S.C. § 18. Section 7 prohibits “acquisitions, including mergers, ‘where in any line of commerce or in any activity affecting commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition.’” The Government claimed, in essence, that permitting AT&T to acquire Time Warner would likely substantially lessen competition in the video programming and distribution market nationwide by enabling AT&T to raise its rivals’ video programming costs or drive them to use DirecTV.

Defendants’ viewed the proposed merger as an essential response to Netflix, Hulu and Amazon, who are threatening the amount of traditional video subscribers Defendants’ could retain, and the value of television advertisements. By acquiring Time Warner, AT&T executives testified that the company will gain access to high-quality content and an extensive advertising inventory. In addition, Defendants claimed that the merger will increase not only innovation but competition in this marketplace for years to come by allowing AT&T to more efficiently pursue what it sees as the future of video programming and distribution: increased delivery of content via mobile devices.

The Court concluded that the Government had failed to meet its burden to establish that the proposed transaction is likely to lessen competitions substantially. Lacking any modern judicial precedent regarding vertical merger challenges (the Antitrust division hasn’t tried a case in four decades) Justice Leon found that evidence indicating defendants recognition that it could possibly act in accordance with the Government’s theories of harm is a far cry from evidence that the merged company is likely to do so. The Court found the Government’s expert, Professor Shapiro, unpersuasive. Specifically, the Court chastised Shapiro’s “bargaining model” saying that it “lacks both reliability and factual credibility and thus fails to generate probative predictions of future harm associated [with the merger].” In its concluding paragraphs, the Court announced that “the defendants have won” but goes on to warn the government of the irreparable harm that could result in an appeal of this decision – a $500 million breakup fee AT&T would owe Time Warner if the merger did not go through by June 21, 2018. Justice Leon notes that he “hope[s] and trust[s] that the Government will [exercise] good judgement, wisdom and courage to avoid such a manifest injustice but in his own words; “[T]he process is not quite over yet!”

For more information, call our business lawyers in Philadelphia at 215-574-0600 or contact us online.The legal team at Sidkoff, Pincus & Green represents clients in Pennsylvania and New Jersey.

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Supreme Court Overturns Physical Presence Rule and Requires Out-of-State Retailers to Collect and Remit Sales Tax

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In a 5-4 decision, the Supreme Court in South Dakota v. Wayfair, Inc. overturned a longstanding precedent requiring businesses to maintain a physical presence in the state before being required to collect and remit sales tax. Under the physical presence requirement, only out-of-state retailers with an actual physical presence in the state were required to collect sales tax. This precedent allowed for retailers that solely participated in shipping goods into the state, upon the request of a consumer via a catalog or online, to bypass the sales tax requirement.  The physical presence doctrine has been the subject of heavy criticism since its inception in 1992, and due to the recent technological advancements in the past twenty years, these complaints have become even more glaring. Due to the rise of the online retail market, it is estimated that the physical presence doctrine has cost states an estimated $8 – $33 billion every year.

In an attempt to mitigate the effects of the physical presence requirement and secure critical funding for essential public services, South Dakota enacted a law requiring out-of-state retailers who deliver more than $100,000 of goods or services in the state or engage in 200 or more separate transactions for delivery to the state to collect and remit sales tax.  The South Dakota Legislature found that due to the State’s inability to collect sales tax and the dramatic revenue loss associated with such regulation, the State has been unable to support its basic services effectively and has declared an emergency.

Justice Kennedy was unsympathetic to the corporate respondents and their request to remain exempt. Kennedy referred to the precedent as “artificial, not just at its edges, but in its entirety.” Furthermore, Kennedy was adamant that the physical presence requirement was inherently flawed and as technology became more and more advanced, the physical presence requirement became “further removed from economic reality.” Kennedy stated that Wayfair, Inc. was requesting the Court to “retain a rule that allows their customers to escape payment of sales taxes. . .” Kennedy further labeled Wayfair’s marketing slogan “one of the best things about buying through Wayfair is that we do not have to charge sales tax” as simply a “subtle offer to assist in tax evasion.” Additionally, while Wayfair specializes in helping their customers build their “dream home” Kennedy reminded them that it is the very state taxes that Wayfair objects to paying that “fund the police and fire departments that protect the home containing their customers’ furniture.”

For more information, contact the Philadelphia business lawyers at the Law Office of Sidkoff, Pincus & Green at 215-574-0600 or contact us online.

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Eastern District of PA Upholds Employment Claim Release in Severance Agreement

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On May 9, 2018 the Eastern District of Pennsylvania granted summary judgment against an employee who brought race and age discrimination claims against her former employer after she signed a release of claims in her severance agreement. Warren v. Mastery Charter Sch., No. CV 17-4782, 2018 WL 2129505, at *1 (E.D. Pa. May 9, 2018). Plaintiff was a social worker in her forties with a master’s degree who worked for Mastery Charter Schools from 2011 through 2016. Her contracts with her employer were year to year and were typically renewed at the end of each year. In spite of consistently positive performance reviews over her first several years working for her employer, at the end of the 2016 school year Mastery chose not to renew Plaintiff’s contract based on allegations of poor performance and communication issues. The day before Plaintiff’s final day of work, Mastery offered her a severance agreement which also contained a release and waiver of any and all employment claims for her to review. The agreement offered significant benefits—including four weeks of additional pay—that it would otherwise not have been available to Plaintiff. Further Plaintiff was offered twenty one days to review and consider the offer, as well as the opportunity to revoke the agreement within seven days if she so chose. The agreement suggested in three different locations that Plaintiff consult with an attorney about the terms and frequently used bold lettering to indicate that the agreement should be carefully read.

Plaintiff alleged that her deteriorating relationship with Mastery had caused her significant stress, depression, and anxiety. Plaintiff alleged that her growing emotional distress caused her to fear if she did not accept the agreement that Mastery would seek to interfere and prevent her future employment elsewhere. Plaintiff signed the agreement on the twenty first day, claiming she felt she had no choice but to sign. Plaintiff then filed a complaint against Mastery for employment discrimination based on age and race on October 25, 2017.

The Court relied on the rule that an employee may release employment discrimination claims against an employer so long as the release is made “knowingly and willfully.” Coventry v. U.S. Steel Corp., 856 F.2d 514, 522 (3d Cir. 1988). The Court relied on precedent to establish that although the Plaintiff may have been undergoing stress it did not negate her knowing and willful agreement to the release and waiver. Further the Court found that the agreement itself was written in a manner calculated to be understood and was sufficiently clear for the Plaintiff to understand what she was agreeing to in signing the release. The Court held that the presence of some legal jargon and long sentences was not sufficient basis to claim the release was not in a manner calculated to be understood. The Court therefore granted summary judgment in favor of Mastery and upheld the validity of the release.

For more information, call our Philadelphia employment lawyers at the Law Offices of Sidkoff, Pincus & Green at 215-574-0600 or submit an online inquiry.

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PA Court Continues Trend of Expanding the Definition of Work Premises

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On February 22, 2018 the Commonwealth Court of Pennsylvania affirmed the growing practice of expanding the boundaries of work premises in order to protect employees injured on the job. US Airways, Inc. v. Workers’ Comp. Appeal Bd. (Bockelman), 179 A.3d 1177, 1183 (Pa. Commw. Ct. 2018), reargument denied (Mar. 28, 2018). A Philadelphia flight attendant working for US Airways, Inc. suffered significant knee and leg injuries while attempting to move her suitcase onto the luggage racks of the shuttle bus that transports employees from a separate parking facility to the workplace of her employer. US Airways did not own, rent, or lease the shuttle buses, and did not require use of the shuttle or provide any directive at all to employees as to how employees should commute to work. The attendant brought a claim seeking compensation to cover the medical expenses for her injuries. The Workers’ Compensation Judge (WCJ) found that the employee was injured in the course and scope of her employment, US Airways appealed.

On appeal US Airways challenged the argument that the shuttle was part of the protected premises for employees. The Court emphasized that the term “premises” in the scope of the workplace was not limited solely to property actually owned or leased by the employer. The Court relied on precedent to establish that “premises includes reasonable means of access to the workplace” and that “means of access customarily used by employees” may be considered within the scope of employer’s premises. US Airways understood that employees who drove to work would almost always be required to park in the separate parking facility and use the shuttle system. The court found that the use of the shuttle system was “a necessary part of her employment.” Even if US Airways did not explicitly require its employees to use the shuttle, it was so integral, connected, and expected for employment that the WCJ did not err in concluding that the shuttle was required by nature of the employment. The Workers’ Compensation Appeal Board’s order was affirmed, and rearguement was denied on March 28, 2018.

For more information, call our Philadelphia employment lawyers in Pennsylvania and New Jersey at Sidkoff, Pincus & Green at 215-574-0600 or contact us online.

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District Court of the Eastern District PA Rules in Favor of Former Employee in Non-Compete Dispute.

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The District Court of the Eastern District of Pennsylvania in Catalyst Outdoor Advertising, LLC v. Douglas denied the plaintiff’s Motion for Preliminary Injunction. 2018 BL 184866 (E.D. Pa. May 24, 2018, No. 18-1470). Jennifer Douglas (Douglas) is a former employee of Catalyst Outdoor Advertising, LLC (Catalyst) and has recently located to New York City to work for City Outdoor, LLC (Outdoor). Before being terminated by Catalyst, Douglas signed a non-compete and restrictive covenant agreement which prevented her from engaging “in the same or similar business” as Catalyst for two years. Neither agreement included a specified geographic limitation and therefore, could be applied to the entire world. Catalyst engages in outdoor advertising, mainly by acquiring and renting billboards in Pennsylvania and New Jersey. One month after Catalyst terminated Douglas, she accepted a position for Outdoor. Outdoor is located in New York City and specializes in the billboard advertising business primarily in the New York.

Catalyst brought a suit seeking preliminary injunctive relief to enjoin Douglas from continuing her employment at Outdoor. When deciding on whether preliminary injunctive relief is appropriate the Court considered four factors: 1. The likelihood that catalyst will succeed on the merits; 2. The threat of irreparable harm to Catalyst if an injunction is not granted; 3. Whether granting an injunction will result in greater harm to Douglas than Catalyst; and 4. Whether injunctive relief will be in the public interest.. The Court rejected Catalyst’s motion based on its failure to satisfy the first two factors.

Catalyst argued that Douglas should be enjoined from her employment with Outdoor because the restrictive covenant was reasonably necessary for their protection of legitimate business interests. The legitimate business interest in this matter, according to Catalysts, was the preservation of trade secrets, development plans, and pricing. Additionally, Catalyst argued that the two employers shared a common competitive market and therefore the lack of a geographic limitation should not prevent preliminary injunction because Outdoor is involved in the same market.

The Court accepted Catalyst’s argument that there was a legitimate business interest to protect but rejected the argument that Outdoor and Catalysts shared the same competitive market, and thus, denied Catalysts motion for preliminary injunctive relief. Without a specified geographic, the court determined that the two companies’ respective markets will determine if they are, in fact, “competing.” Since Catalyst primarily operated in Philadelphia while Outdoor focused in Manhattan and the Bronx, the court determined that these were, in fact, two separate markets and that these two companies were not competing. Thus, the court found that Catalyst failed to satisfy the first factor required to win a preliminary injunction.

Lastly, the Court held that Catalyst did not face the risk of any irreparable harm. The fact that Douglas did not have any confidential information and because of the entirely different markets, there was no threat of irreparable harm. Without the two companies engaging in the same competitive market, Catalyst was not able to establish a legitimate harm. Therefore, the Court rejected the motion for preliminary injunctive relief and Ms. Douglas may continue her employment until a decision is reached at trial.

For more information, call Sidkoff, Pincus & Green at 215-574-0600 or contact us online. Our non-compete lawyers represent clients in Philadelphia.

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Third Circuit Strikes Down Philadelphia Trademark Claim

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In July 2017, the Third Circuit ruled against Appellant Parks, LLC (“Parks”) in its false association trademark claim against Tyson Foods, Inc. and Hillshire Brands Company (collectively “Tyson”). Parks, LLC v. Tyson Foods, Inc., 863 F.3d 220 (3d Cir. 2017). Parks manufactured sausage under the brand name “Parks,” taken from the founder’s surname, from the 1950s until 2000 when it entered into a licensing agreement with Dietz and Watson, a Philadelphia based producer of delicatessen meats. Dietz and Watson, as well as Super Bakery, Inc., has continued to make and sell Parks branded products since partnering in 2000. In 2014, Tyson introduced a line of frankfurters under their trademarked “Ball Park” line called “Park’s Finest.” In 2015, Parks filed suit against Tyson for false association, among other claims, in the District Court. The trial court granted Tyson’s motion for summary judgment, and the Third Circuit affirmed.

To make a successful false association claim, a plaintiff must prove that “(1) the marks are valid and legally protectable; (2) the marks are owned by the plaintiff; and (3) the defendant’s use of the marks to identify goods or services is likely to create confusion concerning the origin of the goods or services.” A mark can be valid and legally protectable if it is either inherently distinctive or achieves secondary meaning. Since trademarks based on a surname are not inherently distinctive, Parks argued that “Parks” has a secondary meaning which occurs when “the mark is interpreted by the consuming public to be not only an identification of the product or services, but also a representation of the origin of those products or services.” In order to evaluate if “Parks” has a second meaning, the Court examined factors including the extent of advertising, length and exclusivity of use, evidence of copying, customer surveys, size of the company and number of sales and customers, and actual confusion.

While Parks could show that it had a long history and exclusivity of use of “Parks,” considering its nearly 60-year history of using the mark, it was unable to prove the other factors. First, Parks could not show that there was recent evidence of extensive advertising sufficient to create a mental association between the mark and the product because their product was merely advertised locally. Second, Parks could not prove that Tyson purposefully copied the “Parks” brand. Third, Parks was unable to show that there was brand confusion using a Squirt survey, in which participants are asked questions about the products in the claim alongside control products to see if there is confusion. Here, the survey did show consumer confusion; however, the Court rejected the results as the participants were primed to find these products to be similar amongst the varied control products. Finally, Parks’ minimal sales compared to Tyson’s large presence in the national market lends to the conclusion that “Parks” did not have a second meaning because people more likely associate the mark with the larger Tyson and historically have not actually confused the two brands as evidenced through extensive discovery.

Even though the Court recognized Parks’ long history and exclusivity of the “Parks” mark, it found that Parks’ false association claim could not continue in the face of its lack of advertising, its “miniscule market share,” and its lack of brand confusion.

For more information, please call our Philadelphia Trademark Lawyers at Sidkoff Pincus & Green at 215-574-0600 or submit an online inquiry.

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Eastern District PA Court Finds Sites Reviewing Products are not Engaged in Commercial Speech

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On May 4, 2018 the United States District Court for the Eastern District of Pennsylvania held that certain websites that engage exclusively in reviewing consumer goods are not engaged in “commercial speech” and are not in violation of trademark law. GOLO, LLC v. HighYa, LLC, No. CV 17-2714, 2018 WL 2086733, at *1 (E.D. Pa. May 4, 2018). Plaintiff GOLO owns and operates a weight loss program which had been reviewed on both Defendants, HighYa and BrightReviews, websites. Plaintiff alleged that the reviews posted by Defendants and consumers on their sites were fraudulent and harmed its business. Neither Defendant sells any goods from their sites and both derive most, if not all, of their revenue from web traffic and advertisements on their sites. Plaintiff brought a claim for false advertising and trademark infringement under the Lanham Act as well as state law libel and unfair competition claims.

The Eastern District dismissed Plaintiff’s claims based upon the fact that Defendants did not engage in commercial speech. The court explained that to sustain a claim under the Lanham Act regarding issues of false advertising or false association it is required that such speech made be commercial. To identify if speech is commercial a court must decide “whether the speech (i) is an advertisement, (ii) refers to a specific product or service, and (iii) whether the speaker has an economic motivation for the speech.” Id. The main dispute was whether prongs (i) and (iii) were met by way of Defendants’ online reviews. Relying on a decision in the Eleventh Circuit, the Court reasoned that although Defendants were economically benefitted by consumers trafficking their sites and reviews, “the financial benefit is merely incidental to the content of the reviews.” Defendants did not directly make recommendations regarding Plaintiff’s program. Further Plaintiff could not cite to specific evidence of how Defendants’ reviews directly and negatively harmed business.

The Court went on to dismiss the trademark infringement or false association claim on the grounds that Plaintiff had not sufficiently alleged that Defendants’ use of Plaintiff’s name was “likely to cause consumer confusion.” The trade libel claim and unfair competition claims were dismissed due to such claims being time-barred and Plaintiff inadequately pleading falsity. The Motion to Dismiss on behalf of both Defendants was granted.

For more information, please call our Philadelphia trademark lawyers at Sidkoff, Pincus & Green at 215-574-0600 or submit an online inquiry.

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Third Circuit Affirms Denial of Injunction Blocking Transgender Bathroom Policy

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The Third Circuit Court of Appeals affirmed the denial of a preliminary injunction that would prohibit a school district from continuing its practice of allowing transgender students to use the bathroom and locker rooms of the sex by which they identify. Doe by & through Doe v. Boyertown Area Sch. Dist., No. 17-3113, 2018 WL 2355999, at *1 (3d Cir. May 24, 2018). The claim was brought by parents of several cisgender students who claimed that such policy of the Boyertown Area School District violated their Fourteenth Amendment right to privacy, their right to access to educational opportunities, programs, and benefits, and their Pennsylvania common law right to privacy preventing intrusion while using bathrooms and locker rooms. Doe by & through Doe v. Boyertown Area Sch. Dist., 276 F. Supp. 3d 324 (E.D. Pa. 2017), aff’d, No. 17-3113, 2018 WL 2355999 (3d Cir. May 24, 2018). The policy had been implemented since the beginning of the 2016-17 academic year, the plaintiffs sought the school district return to the prior policy requiring students to use any private facilities associated with their biological sex assigned at birth.

After reviewing the testimony of the students whose parents brought the complaint, testimony from a transgender student at the Boyertown Area Senior High School, and testimony from Dr. Scott Leibowitz, an expert in gender dysphoria and gender identity issues in children and adolescents, the trial court denied the motion for preliminary injunction. The court concluded that the plaintiff students “did not have a constitutional right not to share restrooms or locker rooms with transgender students whose sex assigned at birth is different than theirs.” Much of the emphasis by the court was predicated on the fact that the plaintiffs, if they were uncomfortable sharing private facilities under the policy, could have used private stalls or an alternative facility like the nurse’s office.

The plaintiffs failed to meet the “particularly heavy burden” of showing they were entitled to the preliminary injunction as they did not seek a return to the status quo but a change in a policy that stood for a year.  Further the plaintiffs had not sufficiently shown that they were likely to suffer “irreparable injury” if the injunction was not issued as the policy had been around for almost a year when they filed their complaint. The Third Circuit affirmed the denial of the preliminary injunction “for the reasons that the Court explained in its exceptionally well reasoned Opinion”. Doe by & through Doe v. Boyertown Area Sch. Dist., No. 17-3113, 2018 WL 2355999, at *1 (3d Cir. May 24, 2018).

For more information, call our employment lawyers in Philadelphia at Sidkoff, Pincus & Green at 215-574-0600 or contact us online.