Author, Thomson Reuters Westlaw Journal

1. WHAT’S INSIDE
Litigation News and Analysis • Legislation • Regulation • Expert Commentary
CLASS ACTION
Westlaw Journal
41917575
VOLUME 23, ISSUE 11 / JANUARY 2017
STANDING
3 Credit card class action
tossed, partly under high
court’s Spokeo decision
Strubel v. Comenity Bank
(2d Cir.)
ALISON FRANKEL’S
ON THE CASE
4 How Trump DOJ could upend
one of the biggest business
cases facing Supreme Court
EMPLOYMENT
5 Flight attendant class
certified in wage suit
against Virgin America
Bernstein v. Virgin America Inc.
(N.D. Cal.)
AUTOMOTIVE
7 Goodyear asks SCOTUS
to restrict federal judges’
inherent sanctions power
BANK & LENDER LIABILITY
9 U.S. justices could
allow Miami to sue banks
over lending bias
Bank of America Corp. v.
City of Miami (U.S.)
BANKRUPTCY
10 Justices debate creditor
collusion, role of settlements
in bankruptcy cases
Czyzewski v. Jevic Holding
Corp. (U.S.)
EMPLOYMENT
13 Business groups urge
Supreme Court to OK
narrower review of EEOC
subpoena rulings
McLane Co. v. EEOC (U.S.)
ENVIRONMENTAL
15 Landowners’ bid to split
parcel on protected river
now before high court
Murr v. Wisconsin (U.S.)
SPECIAL REPORT
U.S. Supreme Court report: A preview of upcoming cases
U.S.SupremeCourtdecisionsaffectthelawsand
jurisprudence in many practice areas. In addition
to our regular coverage, Westlaw Journals
provides subscribers with a comprehensive
look at cases pending before the high court in a
special year-end report.
Our writers contribute analysis of cases in the
myriad fields we cover throughout the year. The
court’s rulings in practice areas such as business
and finance, class actions, employment,
bankruptcy, technology and health frequently
influence the law in many other subjects.
In a challenge to the Obama administration,
the court will decide if the U.S. Department of
Justice overreached by sending public schools a
letter telling them to generally treat transgender
students consistent with their gender identity.
Some other issues before the court include:
whetheracitycanbean“aggrievedperson”under
the Fair Housing Act; which standard appellate
courts should apply to a trial court’s decision
to quash or enforce an Equal Employment
Opportunity Commission subpoena request;
and whether creditor settlements can ignore
bankruptcy priority.
Westlaw Journals also reports on a case before
the court asking if high-ranking federal officials
can be sued for the detention of non-citizens
after the 9/11 attacks.
We trust readers will find this compendium of
groundbreaking legal developments helpful
in keeping up with the ever-changing legal
landscape.
Westlaw Journals will continue to provide
updates on the high court’s actions in the
coming months.
Westlaw Journals editorial team
REUTERS/Stephen LamCONTINUED ON PAGE 6
PRISONERS’ RIGHTS
Alabama state prisoners win class certification
for mental health claims
A federal judge in Alabama has granted hundreds of state prison inmates class
certification on claims that the state “starves” its prison system of resources to treat
mental illnesses and medicates the prisoners involuntarily without due process.
Braggs et al. v. Dunn et al., No. 14-cv-601,
2016 WL 6917203 (M.D. Ala. Nov. 25, 2016).
U.S. District Judge Myron H. Thompson of the
Middle District of Alabama certified two classes:
one for all people with serious mental health
disorders incarcerated in Alabama prisons, and
one for all people with serious mental health
disorders who are subject to the state Department

2. © 2016 Thomson Reuters2 | WESTLAW JOURNAL n
CLASS ACTION
Westlaw Journal Class Action
Published since April 1994
Director: Mary Ellen Fox
Editors:
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Mike.Leonard@thomsonreuters.com
Donna M. Higgins
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Desk Editors:
Alex Horowitz, Jennifer McCreary,
Katie Pasek, Sydney Pendleton,
Maggie Tacheny
Graphic Designers:
Nancy A. Dubin, Ramona Hunter
Westlaw Journal Class Action
(ISSN 2155-0697) is published monthly
by Thomson Reuters.
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TABLE OF CONTENTS
U.S. SUPREME COURT REPORT
Automotive
Goodyear asks SCOTUS to restrict federal judges’ inherent sanctions power................................................. 7
Bank & Lender Liability
U.S. justices could allow Miami to sue banks over lending bias (U.S.).............................................................9
Bankruptcy
Justices debate creditor collusion, role of settlements in bankruptcy cases (U.S.)....................................... 10
Claims for time-barred debt do not violate FDCPA, debt collector argues (U.S.)..........................................12
Employment
Business groups urge Supreme Court to OK narrower review of EEOC subpoena rulings (U.S.)..................13
Environmental
Landowners’ bid to split parcel on protected river now before high court (U.S.)............................................15
Health Law
Supreme Court wades into ‘transgender restroom’ dispute, taking on case from Virginia (U.S.).................17
Intellectual Property
U.S. top court to hear dispute over trademark for band The Slants (U.S.)......................................................19
Patent exhaustion case added to Supreme Court’s queue (U.S.)....................................................................19
Attorneys weigh in on high court ‘substantial portion’ patent debate (U.S.)..................................................21
Justices hear clashing arguments over laches defense to patent suits (U.S.)................................................23
White-Collar Crime
Supreme Court to hear qualified immunity case over 9/11 detentions (U.S.)................................................24
Expert Analysis: By Elizabeth Kurpis, Esq., Mintz, Levin, Cohn, Ferris, Glovsky & Popeo
Knockoffs: To kill or not to kill, that is the copyright question before the Supreme Court............................26
Expert Analysis: By Matthew D’Amore, Esq., Morrison & Foerster
Supreme Court to consider reach of U.S. patent laws to exported goods.....................................................28
Expert Analysis: By Alexandra Laks, Esq., Morrison & Foerster
Class dismissed … But not quite: Supreme Court to review appealability of class certification
denials when plaintiffs voluntarily dismiss case..............................................................................................30
Aviation
Aviation company wins support in Supreme Court challenge of FAA rule (U.S.)..........................................32
Supreme Court asked to clarify Montreal Convention’s 2-year filing limit (U.S.)...........................................33
Bank & Lender Liability
Lawyer wants Supreme Court to review CFPB ratification of enforcement action (U.S.)..............................34
Bankruptcy
Barclays says high court need not take preemption case in SemGroup Chapter 11 (U.S.)............................35
Class Action
Collective-action waivers in employee arbitration clauses arrive at high court (U.S.)...................................36
Derivatives
Big banks ask Supreme Court to review Libor antitrust decision (U.S.)......................................................... 37
Employment
EEOC urges Supreme Court not to expand pre-suit conciliation process (U.S.)...........................................38
Insurance
Insurance group asks Supreme Court to review Michigan tax for ERISA conflict (U.S.)................................40
Medical Malpractice
Federal court lacked jurisdiction in VA benefits dispute, government tells justices (U.S.).............................41
Pharmaceutical
California high court erred on jurisdiction when it let Plavix case proceed, petition says (U.S.)...................42
Securities Litigation & Regulation
Securities law profs ask justices to hear tolling issue in Deepwater Horizon suit (U.S.)...............................44
Government contractor asks Supreme Court to review ‘failure to disclose’ securities suit (U.S.).................45
Toxic Torts
Manufacturers ask high court to hear jurisdiction dispute in toxic exposure case (U.S.)..............................46
Case Index.........................................................................................................................................................47
Prisoners’ Rights: Braggs v. Dunn
Alabama state prisoners win class certification for mental health claims (M.D. Ala.).....................................1
Standing: Strubel v. Comenity Bank
Credit card class action tossed, partly under high court’s Spokeo decision (2d Cir.).......................................3
Alison Frankel’s On the Case
How Trump DOJ could upend one of the biggest business cases facing Supreme Court...............................4
Employment: Bernstein v. Virgin America Inc.
Flight attendant class certified in wage suit against Virgin America (N.D. Cal.).............................................5

3. 26 | WESTLAW JOURNAL n
CLASS ACTION © 2016 Thomson Reuters
EXPERT ANALYSIS
Knockoffs: To kill or not to kill, that is the copyright question
before the Supreme Court
By Elizabeth Kurpis, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky & Popeo
On Oct. 31, the U.S.
Supreme Court heard
oral arguments in Star
Athletica LLC v. Varsity
Brands Inc., No. 15-866, a case in which
Varsity Brands has alleged that competitor
Star Athletica infringed Varsity’s copyrighted
stripe, chevron, color block and zigzag
designs by applying them to Star Athletica’s
cheerleading uniforms.
The issue was not whether each company’s
stripes and chevrons were substantially
similar. Instead, the issue was whether
Varsity’s designs were copyrightable at all —
and this is where things get fuzzy.
The case was first heard by the U.S. District
Court for the Western District of Tennessee,
which held that Varsity’s designs are not
separable from the utilitarian function of the
cheerleading uniform and therefore are not
copyrightable.
The 6th U.S. Circuit Court of Appeals
reversed, concluding that the designs could
be copyrighted because the combinations of
stripes, chevrons, color blocks and zigzags
allow the garment to be recognizable as a
cheerleading uniform, which conceptually
separates it from the basic function of the
underlying article of clothing.
Star Athletica then petitioned the Supreme
Court to review the case in hopes of getting
some clarity.
Because a useful article itself cannot be
copyrighted, copyright owners rely on the
Oct. 31
Argument held
Because there is no concise
and uniform definition of
“conceptual separability,”
the meaning of this term
has become an important
unresolved question in
U.S. copyright law.
concept of “conceptual separability” to
protect their designs.
Conceptual separability essentially allows
for a component of an article that is separate
from its utility aspect to be copyrighted.
Because there is no concise and uniform
definition of “conceptual separability,”
the meaning of this term has become an
important unresolved question in U.S.
copyright law.
Further compounding the issue, federal
courts have applied a variety of tests to
determine when, if ever, a design on clothes
is conceptually separable. Unfortunately, no
clear-cut rule has emerged to settle disputes
like the one that exists in the Star Athletica
case.
As a result, when Star Athletica’s petition
for certiorari was granted, IP professionals
and owners expected the Supreme Court
to finally address the confusion that has
mounted with regard to this concept.
Unfortunately, many were disappointed, as
the justices seemingly failed to do so based
on their line of questioning.
They neither brought up the issue directly
nor showed interest in discussing under
what circumstances a useful article can be
protected.
Rather, the justices focused overwhelmingly
on whether the specific designs in question
were utilitarian or not, leading one to believe
that we may end up with a far narrower ruling
than most interested followers had hoped for.
POTENTIAL OUTCOMES AND
THE FASHION INDUSTRY
A Supreme Court ruling in favor of Star
Athletica could deal a significant blow to
the fashion industry in terms of copyright
protection.
Generallyspeaking,companiesanddesigners
have been able to rely on copyrights to
protect things such as original fabric prints.
Here, Varsity is arguing that the chevron
designs on their cheerleading uniforms
fall more in line with a fabric “print” or
“design,” rather than a utilitarian and
non-copyrightable aspect of the uniform.
Elizabeth Kurpis is an attorney with Mintz, Levin, Cohn, Ferris,
Glovsky & Popeo in New York. She advises fashion companies on a
variety of legal issues and matters, including trademark, licensing
and other intellectual property-related issues, supplier management,
manufacturer negotiations, import-export issues, privacy, technology
concerns, and corporate structuring and restructuring. She can be
reached at EKurpis@mintz.com.
Stripping away legal protection would
essentially be saying that stripes, chevrons,
color blocks and zigzags as applied to a
uniform would not be copyrightable, but
would be if they were a printed design —
a seemingly lopsided result.
And because these designs were actually
copyrighted already, a ruling for Star
Athletica would undermine the rights
designers assumed they already had, a
tough pill to swallow where often their work
already straddles numerous IP protections —
usually without neatly falling under any.
If the Supreme Court rules for Varsity and
establishes a single test for determining
whether a design is conceptually separable
from its utilitarian function, it would likely
provide the fashion industry with more
confidence in the ability to protect through
copyright certain design elements of apparel
and accessories.

4. JANUARY 2017 n
VOLUME 23 n
ISSUE 11 | 27© 2016 Thomson Reuters
Question presented
What is the appropriate test to
determine when a feature of a useful
article is protectable under Section 101
of the Copyright Act?
Designers will have clearer guidance on
how best to protect portions of their work
that may not have been deemed covered
under U.S. copyright law because they were
considered to be strictly “useful.”
At present, numerous tests exist for analyzing
whether such elements are copyrightable. As
a result, at present the outcome depends on
the test used in the jurisdiction where the
enforcement action is brought or maintained.
Of particular interest to the fashion industry
is the effect that the high court’s ruling will
have on powerhouse fast-fashion retailers
and others currently relying on the lack of
protections for designs in U.S. copyright law.
Because so few protections currently exist
for such fashion designs, some powerhouse
fast-fashion retailers have been able to
generate substantial revenue producing
near-copycat designs from the runways
of luxury brands and selling them at a
significantly lower price point.
They are able to do so much faster than the
traditional model allows. As a result, such
knockoff pieces can become available in
stores even before the original designs are
produced and delivered to retailers.
Under those circumstances, the merchandise
from fast-fashion companies is often posted
on a retailer’s website as soon as samples are
available, which allows customers to order
the pieces as production is being completed.
These fast-fashion companies understand
that the protections afforded to ready-
to-wear companies and their designs are
extremely limited and difficult to enforce.
Because of these limitations, they have
created successful business models that
are based on exploiting the ambiguity in
copyright protection by copying only the
uncopyrightable elements of a fashion
design, including shapes and visual elements
of a garment, while taking care to avoid
copying logos or specific custom prints.
If the Supreme Court rules in favor of Varsity,
fast-fashion retailers will have to adjust their
business models accordingly, as elements of
the designs that may not have been deemed
copyrightable may become so.
They will also have to carefully assess how
any new judicial standard will affect each
copy. They will further need to analyze
whether elements that were traditionally
considered “useful” may be copyrightable
under the new standard.
This will be risky business until the new test
is litigated and the fashion industry can see
how the courts apply it in practical terms.
Although it is not known if this case will lead
to a single test for determining conceptual
separability, one thing that is clear from oral
arguments is that the justices understand
the implications of their decision.
Justice Sonia Sotomayor pointed out that
depending on the end result, the knockoff
might be eliminated altogether.
This could have a deep impact on fast-fashion
retailers in particular because knockoffs are
the foundation of their business model.
While the justices understand the broad
financial and legal implications of their
decision, there is a lot of basic information
they need to digest. Justice John Roberts
made that clear when he asked whether it
would make a difference if the chevrons and
stripes were stitched rather than applied.
Other justices struggled with the issue of
whethercamouflageshouldreceivecopyright
protection, since it is a distinctive design that
also serves a practical purpose.
Considering that the answers to these
questions are still uncertain, one would think
that a concise test would be the best way to
resolve these ambiguities.
MORE THAN JUST FASHION
Although this case mainly focuses on the
fashion industry, the Supreme Court’s
ruling may also have ramifications for other
industries such as that of 3-D printing.
As with any new copying technology —
think CD burners and Napster for the music
industry — the invention of 3-D printers
creates a host of IP issues, some of which the
Supreme Court may touch upon here.
At the most basic level, any objects printed
that are strictly nonfunctional or ornamental,
such as a unique jewelry design, would be
protected by U.S. copyright law.
On the other hand, objects that are designed
strictly as utilitarian and functional articles,
such as a hanger, would not be.
The issues affecting the 3-D printing industry
fall somewhere in between and also involve
the doctrine of conceptual separability.
Should the Supreme Court rule in favor of
Varsity, the law would allow the utilitarian
core of an object to be separated from its
creative parts and therefore be eligible for
copyright protection.
Such a ruling would change the landscape
of the law, as copyrights would then be
allowed to apply to certain “useful articles,”
protections for which were traditionally not
available.
The potential consequences for the 3-D
printing industry are enormous, as this
expansion can hypothetically apply to any
printed object so long as the owners can
argue that there are elements that are not
strictly utilitarian.
For instance, a 3-D printed pen cap that does
anything other than strictly cover the top of a
pen can be protected by U.S. copyright law.
With the Star Athletica case, the 3-D printing
industry is hoping the Supreme Court will
provide some guidance on how to separate
creative, copyrightable designs from
unprotected utilitarian objects because the
survival of the industry may depend on it.
Star Athletica is a case that the copyright
world generally, and the fashion world
specifically, has anxiously been following in
hopes of receiving some clarity in the murky
body of copyright law that has developed
over the years.
In addition to the fashion industry, the
advancement of a test by the Supreme Court
for determining when certain elements of
a useful article are copyrightable may have
significant implications for other industries
that produce goods that combine artistic and
utilitarian elements.
Depending upon which side the Supreme
Court ruling falls, the parameters of copyright
protection in the fashion industry may be
clarified or even completely redefined. We
wait with bated breath, Supreme Court. WJ
A Supreme Court ruling in
favor of Star Athletica could
deal a significant blow to
the fashion industry in terms
of copyright protection.