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Tuesday, January 10, 2006
Ind. Decisions - 7th Circuit posts two interesting opinions today
The 7th Circuit has decided two interesting civil cases today, neither of them directly relate to Indiana.
In 520 South Michigan Avenue Associates v. Devine, Judge Easterbrook writes:
For many years it has been a crime in Illinois to employ a “professional strikebreaker.” 820 ILCS 30/2. (A “professional strikebreaker” is anyone who repeatedly works during strikes. 820 ILCS 30/1(c). One need not be a goon to fit the definition.) In 2003 the state extended the prohibition to acquisition of strike-breaking labor from any “day or professional labor service agency”. * * *In ConFold Pacific v. Polaris Industries, a 15-page opinion, Judge Posner concludes:
Under federal labor law, just as workers are free to withhold their labor, so employers are free to hire either temporary (see NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345 (1938)) or permanent (NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967)) replacements—though employers can’t give them superseniority, compare NLRB v. Erie Resistor Corp., 373 U.S. 221 (1963), with Trans World Airlines, Inc. v. Flight Attendants, 489 U.S. 426 (1989). The state’s effort to make the hiring of replacement workers a crime is so starkly incompatible with federal labor law, which prevails under the Constitution’s Supremacy Clause, that we do not understand how a responsible state legislature could pass, a responsible Governor sign, or any responsible state official contemplate enforcing, such legislation. States are entitled to protect replacement workers against fraud, see Belknap, Inc. v. Hale, 463 U.S. 491 (1983), but the Strikebreakers Act does not do this; it is written as a substantive limit on the employer’s use of a particular economic tactic. Unless there is some way to support this law that state officials have yet to suggest—either in Caterpillar or in this litigation—a declaratory judgment should be issued with dispatch.
The judgment is reversed, and the case is remanded for decision on the merits.
In an effort to keep this concept of unfair competition or misappropriation—this bequest by the Supreme Court to a number of states—within reasonable limits, the Second Circuit, in an influential opinion interpreting New York law, stated the elements of the tort as follows: “(i) the plaintiff generates or collects information at some cost or expense; (ii) the value of the information is highly timesensitive; (iii) the defendant’s use of the information constitutes free-riding on the plaintiff’s costly efforts to generate or collect it; (iv) the defendant’s use of the information is in direct competition with a product or service offered by the plaintiff; (v) the ability of other parties to freeride on the efforts of the plaintiff would so reduce the incentive to produce the product or service that its existence or quality could be substantially threatened.” National Basketball Association v. Motorola, Inc., 105 F.3d 841, 852 (2d Cir. 1997) (citations omitted). ConFold has made no effort to establish these elements. Its misappropriation claim comes down to a claim of infringement of a design that it did not patent. Such a claim is preempted by patent law, as held by the Supreme Court in the Bonito case cited earlier. See also Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 231-32 (1964); Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 239 (1964). The broader, INS-type claim probably is not preempted, see Bonito Boats, Inc. v. Thunder Craft Boats, Inc., supra, 489 U.S. at 154, but, as we have just noted, its elements have not been proved.
Posted by Marcia Oddi on January 10, 2006 01:28 PM
Posted to Ind. (7th Cir.) Decisions