Waiving right to arbitrate: who decides?

In Marie v. Allied Home Mortgage Corp., an employee filed a charge of discrimination with the EEOC. Allied responded, and the EEOC issued a dismissal. Allied never raised the issue of arbitration-there was an arbitration clause in the employment contract-in the EEOC proceedings. Marie then initiated a suit in Massachusetts Superior Court. Allied sought to compel arbitration. The trial court refused the request, concluding, among other things, that Allied had waived its right to arbitrate the claims.

The key issue before the First Circuit was whether an "employer waives its contractual right to compel arbitration of a Title VII claim by not filing for arbitration when the employee initiates an EEOC complaint, but instead waiting and only moving to compel arbitration after the employee later files a civil claim in federal court." As a threshold matter, and despite the recent holdings of Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444 (2003) and Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (2002), the Court found that the issue of waiver of the right to arbitrate based on conduct in another forum "remains an issue for the court" to decide. The First Circuit then went on to conclude that "an employer does not waive its right to arbitration by failing to demand arbitration during the pendency of an EEOC investigation." Marie v. Allied Home Mortgage Corp., No. 04-1403 (March 16, 2005).

Safe harbor created for parolee immigrants who marry U.S. citizens.

In a case that the American Immigration Law Foundation is touting as a "landmark" in immigration law, the First Circuit held that immigrants paroled into the United States - who subsequently marry U.S. citizens - may obtain green cards without being required to leave the country. Without this ruling, the Foundation claims, some families "faced separations of up to 10 years."

The case is Succar v. Ashcroft. A person is paroled into the U.S. when the government allows him or her to enter even though the immigration status is still pending. Mr. Succar was paroled into the U.S. pending resolution of his claim for asylum. During this time, he married a U.S. citizen, but because a government regulation required that parolees who marry U.S. citizens could not qualify for legal status unless they left the country, an immigration judge denied his application for legal status as the husband of a U.S. citizen. The First Circuit decision overturned the regulation, noting that Congress intended to allow law-abiding parolees who marry American citizens to apply for an adjustment of status without being compelled to leave the country. The Court found that the regulation conflicted with "Congress's careful balancing" of the country's security interests and its interests in allowing the immigration of close family members of U.S. citizens. Succar v. Ashcroft, No. 03-2445 (January 5, 2005).

Digital collections of prior collected works: privileged revisions or a "no-no"?

In Faulkner et al. v. Mindscape Inc., et al., the Second Circuit held that a CD-ROM set collecting National Geographic Magazines was a privileged "revision" of the original collected works within the meaning of section 201(c) of the Copyright Act. In sum, photographers and authors whose pictures and/or writings were originally published in various issues of National Geographic sued, claiming that a new digital collection violated the Copyright Act. The Second Circuit disagreed, holding that because the original context of the magazines "is omnipresent in the [CD-ROM version] and because it is a new version of the magazines, the [CD-ROM version] is a privileged revision." There was no copyright violation.

This decision seemingly is in direct conflict with Greenberg v. National Geographic Society, 244 F.3d 1267 (11th Cir. 2001). As a side note, the Second Circuit did conclude that "photographs that were subject to express contractual provisions preserving electronic rights in the copyright owners" were outside the revisions privilege. This highlights the importance of contractually preserving and segregating each specific category of copyright entitlement for clients, if they so desire.

Faulkner, et al. v. Mindscape Inc., et al., Nos. 04-263, 04-388, 04-265, 04-475, 04-318, 04-481 (March 4, 2005).

Eric Cioffi, a member of the NHBA and a former law clerk for the NH Supreme Court and the US District Court, District of NH. He practices with Greines, Martin, Stein & Richland in California. The firm has a national practice, handling appellate matters.

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