JUNE 2014
Table of Contents
Campolo, Middleton & McCormick, LLP is a full-service business law firm that represents clients in a wide variety of legal matters including litigation, trials and appeals; corporate; mergers and acquisitions; private equity; intellectual property and technology; municipal, liability and government relations; labor and employment; real estate development; healthcare; wills, trusts and estates; matrimonial and personal injury matters including the defense of general liability, construction, premises liability and transportation cases. 

The information contained in this newsletter is provided for informational purposes only, and should not be construed as legal advice on any subject matter. The Firm provides legal advice and other services only to persons or entities with which it has established an attorney-client relationship. No recipients of information from this newsletter, clients or otherwise, should act or refrain from acting on the basis of any information included in this newsletter without seeking appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient's state. The content of this newsletter contains general information and may not reflect current legal developments. The Firm disclaims all liability in respect to actions taken or not taken based on any or all of the contents of this newsletter.
To access past newsletters visit our Newsletter Archive

When is a Volunteer an Employee?
The Fair Labor Standards Act and Municipalities
By Christine Malafi, Esq.

During the course of any given week, I encounter numerous volunteers at the Town programs in which my two sons participate. Sometimes, work schedule permitting, I am even one of those volunteers. Given current budget constraints, volunteers are needed to keep some municipal programs operating. As with private employers, however, sometimes a "public" volunteer is really an employee. Towns and Villages need to be careful to avoid adverse findings by the Federal and New York State Departments of Labor.
The Federal Fair Labor Standards Act ("FLSA") requires both public and private entity employees to be paid minimum and overtime wages. The question of who qualifies as an "employee" under the FLSA is not as simple as one would expect.

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Is Prepaid Rent Recoverable if a Lease Terminates Early?
By Patrick McCormick, Esq.
What happens when rent is prepaid under a lease but the lease is purportedly terminated prior to the expiration of the term? The Court of Appeals in Eujoy Realty Corp. v. Wagner Communications, LLC addressed this issue. 
Landlord Eujoy owned a building in Queens with a steel frame structure on the roof for the placement of billboard advertisements. Tenant Van Wagner considered the billboard desirable because of its visibility to passing traffic on the Long Island Expressway. Van Wagner leased the billboard for a 15-year term commencing December 1, 2000 and ending September 30, 2015.
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Direct Infringement Required for Inducement Claim
By Eryn Y. Truong, Esq.
The Supreme Court recently reversed the Federal Circuit and unanimously held that a defendant is not liable for inducing infringement of a patented method unless a single actor performs all of the steps of the method.
In Akamai Technologies, Inc. v. Limelight Networks, Inc., the Federal Circuit had held that that an accused infringer can be held liable for inducement to infringe a claimed method if (1) the accused infringer knew of the patent, (2) the accused infringer induced performance of the steps of the method claimed in the patent, and (3) those steps were performed, even if the patent owner cannot prove direct infringement. Under the this holding, all the steps of a claimed method must be performed in order to find induced infringement, but it was not necessary to prove that all the steps were committed by a single entity.  This decision overturned prior precedent that required proof of direct infringement by a single entity as an element of an inducement claim.  
Supreme Court Holds that Competitors May Bring False Advertising Claims Challenging Food and Beverage Labels Regulated by the Food and Drug Administration
By Lauren Kanter, Esq.

Perhaps Coca-Cola should stick to soda.


A unanimous Supreme Court held this month that competitors may bring false advertising claims under the federal Lanham Act - even if the challenge is to food and beverage labels regulated by the Food and Drug Administration under the federal Food, Drug, and Cosmetic Act ("FDCA") (which prohibits the misbranding of food and drinks).  See POM Wonderful LLC v. Coca-Cola Co., No. 12-761.


POM Wonderful LLC makes and sells pomegranate juice products, including a pomegranate-blueberry blend.  Coca-Cola's Minute Maid division makes and markets a juice blend bearing the label "POMEGRANATE BLUEBERRY" in all capital letters above smaller lettering that reveals the juice is a blend of five different juices.  Minute Maid's product contains 0.3% pomegranate juice and 0.2% blueberry juice (which the Court described as "a "a minuscule amount"). 

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Protecting Your Assets Part II
By Martin S. Glass, Esq.

Last month I started a discussion about how to protect our assets so we actually have something to pass to our heirs upon our death. I mainly talked about how the government tries to reduce our estate by way of taxes. This month the discussion moves to the cost of long term care, and how to minimize that cost.

As previously stated, the cost of care in New York can run anywhere from $6,000 per month for home care to over $15,000 per month for nursing home care. That's a lot of money to go through! Doing the math, that's over $180,000 per year. With the average stay in a facility being two and a half years, the cost could climb to a half a million dollars when all is said and done.

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McCormick Elected  to  Suffolk Academy of Law Board
We would like to congratulate Patrick McCormick on being elected as an Officer of the Suffolk Academy of Law. The Academy is the educational branch of The Suffolk County Bar Association and is chartered by the New York State Board of Regents as an educational institution, providing legal education to attorneys for over 30 years.
Malafi Joins Natasha's Justice Project Board

We would like to congratulate Christine Malafi on joining the board of Natasha's Justice Project. Natasha's Justice Project is a 501(c)(3) non-profit organization that seeks to end the nation's current rape kit backlog crisis and empower survivors of sexual assault. NJP was founded by Natasha S. Alexenko, a victim and survivor of sexual assault, in hopes of exposing and eliminating the current rape kit backlog that exists in public municipalities throughout the United States. 

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Stony Brook Children's Hospital Wine Tasting Fundraiser 
Campolo, Middleton & McCormick will be hosting a fundraiser on July 24 to benefit the Stony Brook Children's Hospital. Lake Liquor of Ronkonkoma will be donating a great selection of wines for us to sample as well as donating a portion of the proceeds from purchases made during the evening.  For more information on the event please contact [email protected].
HIA-LI Golf Outing Honoring Kevin O'Connor
The HIA-LI is pleased to honor Kevin O'Connor, President and Chief Executive Officer of Bridge Bancorp and its wholly owned subsidiary, The Bridgehampton National Bank (BNB), at the HIA-LI 35th Annual Golf Outing on July 14, 2014 at the prestigious Nissequogue Golf and Country Club.  Kevin and the BNB have been strong advocates for helping Long Island business with key initiatives impacting their bottom line. 
Join us every Friday at 10:30 am for our Long Island Legal web show on  
Our June Shows
June 6th - Joe Campolo with special guest Bruce Newman of Protegrity Advisors 
June 13th - Patrick McCormick with special guest Assemblyman Michael J. Fitzpatrick 
June 20th Joe Campolo with special guest Michael Pfaff, General Manager of the Long Island Ducks

Campolo, Middleton & McCormick, LLP
4175 Veterans Memorial Highway, Suite 400
Ronkonkoma, New York 11779
Phone: (631) 738-9100
Fax: (631) 738-0659


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