Definitions Category Archives — Page 2 of 2 — The Virginia Business Litigation Blog Published by Virginia and Washington, D.C. Litigation & Appeals Attorney

May 13, 2009

Injunctions in Virginia

Filing a lawsuit against another company or individual in Virginia is not always about money. Sometimes, it is necessary to get a court order compelling the defendant to take some desired action (like perform a contractual obligation to purchase real estate) or restraining the defendant from acting in a manner that would harm your business (like sharing trade secrets with a competitor). The injunction remedy does not award money damages to the injured party, but protects property and other rights from irreparable injury by prohibiting or commanding acts that would (or are likely to) result in such injuries.

When time is of the essence, Virginia courts will allow a plaintiff to move for a temporary, preliminary injunction to restrain or compel the conduct at issue at the outset of a case, pending further investigation and trial. The purpose of a preliminary injunction is to preserve the relative positions of the parties (i.e., the “status quo”) either while the suit is pending or for some shorter period of time determined by the court. In certain emergency situations, it may be possible to obtain an injunction at a hearing of which the defendant is not notified. This is sometimes necessary when there is a legitimate fear that the defendant would take the feared action (or inaction) upon learning of the lawsuit or motion.

An injunction is considered an “extraordinary” remedy and is generally more difficult to obtain than an award of money damages. Of the different types of injunctions available, the form that compels another party to perform an act (as opposed to merely preserving the status quo and prohibiting certain actions) is considered the most extraordinary and is the most difficult to obtain in court.

April 20, 2009

Your Rights as a Disabled Employee

by Lee E. Berlik

Qualified individuals with disabilities are entitled to an equal opportunity to benefit from the full range of employment-related opportunities available to others. The Americans with Disabilities Act (ADA) prohibits discrimination in the workplace (as well as in government and other contexts) on the basis of disability. It applies to employers with 15 or more employees and covers recruitment, hiring, promotions, training, pay, social activities, and other privileges of employment. The ADA also restricts the questions that can be asked about an applicant’s disability before a job offer is made, and it requires that employers make reasonable accommodations to the known physical or mental limitations of otherwise qualified individuals with disabilities, unless doing so would result in undue hardship.

To be protected by the ADA, one must qualify as having a “disability” (or as having a close relationship with a disabled person) as that term is defined in the Act. Under the ADA, a disabled person is: (1) one having a physical or mental impairment that substantially limits one or more major life activities, (2) a person who has a history or record of such an impairment, or (3) a person who is perceived by others as having such an impairment. See 42 U.S.C. § 12102(2). The ADA does not specifically list or identify all possible impairments that would be considered disabilities.

April 2, 2009

What Is Harassment?

by Lee E. Berlik

So you want to sue your boss for harassment. For years, you have put up with his antics, but now you’ve had enough. He has humiliated you in front of your co-workers, berated you for trivial things, and insulted you. Basically, he is a jerk. But do you have grounds for a lawsuit? Has your boss “harassed” you within the meaning of Title VII of the Civil Rights Act of 1964?

Federal anti-discrimination statutes do not prohibit all harassing behavior. They do not guarantee that your boss will be “nice” to you. They do, however, offer powerful protection against unwelcome verbal or physical conduct based on race, color, religion, sex, gender identification, national origin, age (if you are 40 or older), disability (mental or physical), sexual orientation (depending on the circumstances and jurisdiction), and retaliation against an employee who complains of discrimination, participates in an investigation, or voices opposition to discriminatory practices.

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March 28, 2009

What Is A Trademark?

by Lee E. Berlik

A trademark is a type of intellectual property that generally consists of a distinctive sign or indicator used to identify the originating source of the products associated with the trademark, so that consumers can distinguish the trademark owner’s products from those originating from other sources. Section 45 of the Trademark Act defines the term “trademark” as “any word, name, symbol, or device, or any combination thereof-

(1) used by a person, or

(2) which a person has a bona fide intention to use in commerce and applies to register on the principal register…,