Tuesday, October 29, 2013

New York Issues Survey re Proposed “At Rest” Legislation

The New York State Liquor Authority (NYSLA) has asked state wholesalers to fill out a survey related to the potential impact of proposed “at rest” legislation. 

At rest legislation (New York Bill S3849-2013) would require any alcohol beverage delivered to a New York restaurant or retailer to go through a warehouse located within the state and only after it has come “to rest” for at least 24 hours in that warehouse.  This law would prevent wholesalers from delivering wine from warehouses located in neighboring states (New Jersey, Pennsylvania, Connecticut) to New York on-premise and off-premise establishments.   The New York Farm Bureau and an organization known as the New York Alliance of Fine Wine Wholesalers (which includes Michael Skurnik Wines, Polaner Selections, T. Edwards Wines, and Winebow) have opposed the “at rest” legislation.

The survey is being conducted by Ernest & Young in coordination with Empire State Development (ESD), the state government’s economic development agency.  ESD’s mandate is to “encourage the creation of new job[s]” and “increase revenues to the State and its municipalities.”  According to the survey website, the goal of the survey is to “a) measure how much product (in cases and dollars) of alcoholic beverages are currently being stored out of state before reaching clients in New York, and b) compare storage costs (including employment) for alcoholic beverages at facilities within New York to those located outside the state. “  Given this statement, it appears that the point of the survey is to collect data to show how much tax revenue and new jobs would be created in New York if “at rest” legislation was adopted.  

Even though the NYSLA website only asks for wholesaler response to the survey, the home page for the survey requests participation from “producers, wholesalers, and warehousers of alcoholic beverages.”  The survey encourages those who believe they are eligible for the survey to register by providing name, title, email address, NY Alcohol Beverage License Number and NY Alcohol Beverage License Type.  

For more information on wine law issues, please contact John Trinidad (  

Sunday, October 27, 2013

Disruptive Technologies: The Internet and Wine

Dickenson, Peatman & Fogarty attorney John Trinidad recently gave a presentation at the University of California-Berkeley School of Law on the impact of the Internet on the regulations that govern the wine industry.  You can download a copy of Mr. Trinidad's presentation here.

During his presentation, Mr. Trinidad provided an overview of how the spread of e-commerce influenced the Supreme Court's landmark decision in Granholm v. Heald; discussed third party marketing, California's guidelines thereto, and New York's recent hearings on Internet marketing; and also summarized the U.S. Department of Treasury's Alcohol and Tobacco Tax and Trade Bureau's social media guidelines.  He also discussed the blending of social media and mobile commerce.

For more information on third party marketing, internet marketing, or wine law in general, please contact John Trinidad at

Monday, October 21, 2013

An Employer Primer on the Affordable Care Act

Many employers remain confused about their obligations under the Affordable Care Act ("ACA"). We prepared a primer on the ACA for employers to help clarify some of the applicable ACA provisions. To access the primer, click here.

For more detailed questions, employers should contact their legal counsel or Jennifer Phillips at

Saturday, October 19, 2013

International Wine Law Conference Wraps Up in Vienna

The annual meeting of the International Wine Law Association wrapped up today in Vienna, Austria. The two day meeting featured speakers from Europe, South America, North America and Australia.

Topics covered included wine law developments in up and coming wine markets, geographical indications, advertising restrictions for wine, use of expert testimony in litigation, how government regulators can assist wineries and alternative dispute resolution. 

DP&F's Scott Gerien presented on the Alternative Dispute Resolution program of the US District Court for the Northern District of California. 

For more information on the conference or to learn more about the International Wine Law Association go to 

Thursday, October 17, 2013

Exporting Wine to China Seminar Report - Part I

Dickenson, Peatman & Fogarty attorney Katja Loeffelholz, a registered attorney with the United States Patent and Trademark Office, recently presented at The Seminar Group’s “Exporting Wine to China” program on “Protecting Intellectual Property.”  


China represents the single largest growth opportunity for wine producing countries around the world.  China is a brand driven market.  So what are the challenges in protecting intellectual property in China?  


One of the principal difficulties of protecting intellectual property in China is the failure of U.S. wine brand owners to register their trademarks in China.  Sometimes the failure to register stems from the mistaken belief that a U.S. registration protects them abroad, or the belief that registration in China is expensive and time consuming.  For others still, business or wine exports may be expanding so rapidly that they unintentionally expose to themselves to risk by postponing registration.


China’s Standing Committee of the National People’s Congress has passed new trademark law provisions that should improve a trademark owner’s ability to enforce their rights and deter infringers.  The new law provides for an increase in statutory damages.  Where the infringer is believed to have acted in bad faith, the courts may also award treble damages.  These revisions to the law will serve as a deterrent to infringers while signaling to the rest of the world that China will not tolerate a violation of trademark rights.  


However, a U.S. wine brand owner will be unable to take full advantage of the provisions of the new China trademark law unless and until it registers its mark in China.  There are essentially two ways for a U.S. company to obtain trademark registration in China.  The first is to have its trademark counsel file the trademark application directly in China working with foreign counsel.  The second is to use its U.S. trademark registration as a basis for submitting an International Registration with the United States Patent and Trademark Office.  It should be noted that a trademark registration in the People’s Republic of China will not provide trademark protection in Hong Kong or Macau.  Separate applications will need to be made.


For more information on how you can secure trademark rights in the U.S. and abroad, please contact Katja Loeffelholz at To obtain a copy of Ms. Loeffelholz's presentation “Protecting Intellectual Property” presented at the “Exporting Wine to China” conference please visit 

What all Employers Need to Know about the New Unfair Immigration-Related Practices Laws in California

As of January 1, 2014, laws addressing unfair immigration-related practices go into effect.  The laws are broad and far reaching and portions involve all employers, not just employers with immigrant workers.  While the bulk of the new legislation deals with unfair immigration-related practices, Labor Code 1102.5, California’s whistleblower statute, was also amended to expand the types of situations in which a private right of action can be brought against employers.


Here is a summary of what employers need to know about unfair immigration-related practices:


- If an employee engages in protected conduct, including a written or oral complaint that the employee is owed wages, it is unlawful for the employer to retaliate against the employee by engaging in an “unfair immigration-related practice.”  (New Labor Code 1019)


- “Unfair immigration-related practices” include asking for special documentation of immigration status, refusing to honor specific documents, using E-Verify at a time or in a manner not required or authorized by government, threatening to file a false police report, and threatening to contact or contacting immigration authorities. (New Labor Code 1019 (b))


- If an employer engages in an unfair immigration-related practice within 90 days of an employee engaging in protected activity the law will presume the employer retaliated.  Instead of the employee proving retaliation the employer will need to provide evidence that it did not retaliate.  (New Labor Code 1019 (c)


- Employees will have a private right of action against the employer to seek reinstatement, reimbursement of lost wages, penalties and attorneys’ fees. (Labor Code 1019 (d))


- If an employer is found to have violated these laws the court may order the suspension of all licenses held by the employer under the Department of Consumer Affairs. (Labor Code 1019 (d) (2))


- Under the new law it will also be unlawful for an employer to discharge or in any manner discriminate, retaliate or take any adverse action against an employee because the employee updates or attempts to update his or her personal information, unless the changes are directly related to the skill set, qualifications, or knowledge required for the job.  (New Labor Code 1024.6)


Here is a summary of what all employers need to know about the amendments to the whistleblower statute:


- The whistleblower statute, Labor Code 1102.5, has been expanded.  Current law allows a private right of action for employees who claim to have been retaliated against for filing a complaint with a governmental or law enforcement agency about a violation of law or regulation.  The new law allows such actions when an employer, or someone acting on behalf of the employer, retaliates against an employee for making an internal complaint or disclosing information to his or her employer, or anyone with authority over the employee or to another employee with authority to investigate or discover the violation or noncompliance.  It even allows a private right of action when the employee claims that the employer retaliated against the employee because the employer believed the employee may have so complained or disclosed.


This is a summary review of some of the provisions that will go into effect next year.  For a more detailed look of the laws and how they might affect your business please contact your legal counsel or DP&F at