The ABA Presents: Air & Space Catalog

Drones Across America, Unmanned Aircraft Systems (UAS) Regulation and State Laws

The popularity of drones (Unmanned Aircraft Systems – UAS) and drone technology is the United States has excited entrepreneurs and corporations, while sending lawmakers scrambling to keep pace with the industry’s growth.  This comprehensive book lays out a framework for demystifying the sometimes unwieldy and ever-changing changing area of federal and state drone laws.

 

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The ABA Presents: Air & Space Law Catalog

Aviation Regulation in the United States

This book introduces the various institutions that govern aviation in the US and it covers the international framework — legal and institutional, multilateral and bilateral — within which U.S. regulation takes place. Written by a distinguished panel of experts, requirements applicable to every aspect of the aviation industry are clearly explained with citations.

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Education Secretary Signals Shift in Title IX Policy for Dealing with Sexual Misconduct Allegations

On September 7, 2017, Secretary of Education, Betsy DeVos announced a marked policy shift in how the Department of Education will approach Title IX enforcement with regard to sexual misconduct. DeVos indicated that the Department plans to withdraw the controversial Dear Colleague Letters issued during the Obama administration. Instead, the Department will issue formal regulations that will establish a new Title IX framework for educational institutions investigating and responding to sexual misconduct allegations. The full text of Secretary DeVos’s speech can be found here.

Title IX has been a dominant topic in higher education since 2011, when the Obama Administration issued the “Dear Colleague Letter” explaining that a failure to adequately address sexual misconduct on campus constituted discrimination on the basis of sex in education programs under Title IX.[1] Among other things, the Dear Colleague Letter set forth how schools should respond to sexual misconduct, dictated specific procedures schools must follow to investigate and adjudicate such misconduct, and established various other requirements such as climate surveys, standards of proof, and survivor sensitivity. The Letter made clear that a failure to meet these expectations, and the expanded guidance issued by the Department in 2014, could result in a loss of federal funding, and thus had a swift and substantial impact on the way educational institutions responded to reports of sexual assault or harassment.

In a speech at the George Mason University School of Law on September 7, 2017, Secretary DeVos said that schools will still be required to address sexual misconduct. However, she announced the Department would be rescinding the Dear Colleague Letters and instead regulate through actual regulations, subject to notice and comment. Secretary DeVos lamented that “for too long, rather than engage the public on controversial issues, the Department’s Office for Civil Rights has issued letters from the desks of un-elected and un-accountable political appointees.” She made it clear that “the era of ‘rule by letter’ is over.” DeVos emphasized the Department’s ongoing commitment to protecting victims of sexual violence. But she also clearly signaled that the Department will pay more attention to the due process rights of the accused, including questioning the “preponderance of the evidence” standard that the Department required all schools to use in adjudicating sexual misconduct cases. DeVos promised to work more closely with educational institutions, rather than operating “through intimidation and coercion.” And she said the Department would be open to exploring alternative methods of enforcing Title IX, including the possibility of voluntary regional centers where outside professionals would be available to handle Title IX investigations and adjudications.

DeVos did not indicate exactly what the new Department rules might entail, or when they will come into effect, nor has there been an official withdrawal of the Dear Colleague Letter yet. DeVos did indicate, however, that the Department will base the new rules on public feedback and will take into account the views of educational institutions, professionals, and individual students. In her closing remarks, DeVos noted that the Department of Education’s “interest is in exploring all alternatives that would help schools meet their Title IX obligations and protect all students. [The Department] welcome[s] input and look[s] forward to hearing more ideas.”[2]

Schools should take advantage of the Secretary’s call for comments, as the Department moves towards the development and implementation of a different and hopefully clearer set of rules governing the enforcement of Title IX. However, schools should also anticipate a period of uncertainty until final rules are issued. Moreover, schools should be aware of the continuing (and possibly conflicting) state law obligations that have been put into place following the Dear Colleague Letter. For example, many states including Connecticut and New York have passed legislation mandating use of the preponderance of the evidence standard in evaluating sexual misconduct on college campuses. We anticipate further, more detailed guidance in the next few weeks as the Department of Education works to implement Secretary DeVos’s policy announcements.


[1] 20 U.S.C. §§ 1681 et seq.; 34 C.F.R. Part 106.

[2] Secretary DeVos Prepared Remarks on Title IX Enforcement, available here.

 This post was written by Benjamin DanielsAaron Bayer, & Dana M. Stepnowsky of Wiggin and Dana LLP., © 1998-2017

Chicago City Council Committee Approves Hands Off-Pants On Ordinance to Protect Hotel Employees

On October 2, 2017, the Chicago City Council Committee on Workplace Development and Audit approved an amendment to the Municipal Code (the “Ordinance”) that, if approved by the full City Council, will require hotel employers to equip hotel employees assigned to work in guestrooms or restrooms with portable emergency contact devices and develop and implement new anti-sexual harassment policies and procedures. The Ordinance is in response to multiple reports of sexual assault and harassment targeted at hotel employees by hotel guests.

The Ordinance in its current form will require hotel employers to (1) equip employees who are assigned to work in a guest room or restroom, under circumstances where no other employee is present in the room, with a panic button (at no cost to the employee) which the employee may use to summon help from other hotel staff if s/he reasonably believes that an ongoing crime, sexual harassment, sexual assault or other emergency is occurring in the employee’s presence; (2) develop, maintain and comply with a written anti-sexual harassment policy to protect employees against sexual assault and sexual harassment by guests; and (3) provide all employees with a current copy of the hotel’s anti-sexual harassment policy, and post the policy in conspicuous places in areas of the hotel where employees can reasonably be expected to see it.

With respect to the anti-sexual harassment policy mandates, employers must develop a policy that:

  • Encourages employees to immediately report to the employer instances of alleged sexual assault and sexual harassment by guests;
  • Describes the procedures that the complaining employee and employer shall follow in such cases;
  • Affords the complaining employee the right to cease work and leave the immediate area where danger is perceived until such time that hotel security or the police arrive to provide assistance;
  • Affords the complaining employee the right, during the duration of the offending guest’s stay at the hotel, to be assigned to work on a different floor or at a different station or work area away from the offending guest;
  • Provides the complaining employee with sufficient paid time to (a) file a complaint with the police against the offending guest, and (b) testify as a witness at any legal proceeding that may ensue as a result of such complaint;
  • Informs the employee that the Illinois Human Rights Act and Chicago Human Rights Ordinance provide additional protections against sexual harassment in the workplace; and
  • Informs the employee that it is unlawful for an employer to retaliate against any employee who reasonably uses a panic button or exercises any right under the Ordinance.

Employers in violation of the Ordinance would be subject to a fine between $250-$500 for each offense, and each day that a violation continues constitutes a separate and distinct offense.

Consequently, it is critical that Chicago hotel employers monitor the status of this Ordinance, which is now pending before the full City Council. If passed and signed into law, the Ordinance will take effect within 90 days of signature. Employers should consider preparations for providing panic buttons to those employees protected by the Ordinance and training hotel employees on their use, and revisiting anti-sexual harassment policies, whether stand-alone or included in employee handbooks, to ensure compliance with the Ordinance’s mandates. Additionally, employers should consider providing updated anti-sexual harassment and anti-retaliation training to all employees, including those who are assigned to work in guest rooms or restrooms, to ensure that all employees fully understand their employer’s policies and procedures.

This post was written by Shawn D. Fabian & Michael J. Roth of Sheppard Mullin Richter & Hampton LLP., Copyright © 2017
For more legal analysis go to The National Law Review

Airlines’ Shrinking Seat Space May Increase Likelihood of Head Injuries

While the Federal Aviation Administration (FAA) has addressed protection from head injuries for flight attendants, according to a recent article, it has not addressed the impact of shrinking seat designs on the safety of passengers. A second article states that no seat in coach meets the FAA’s standards for the space required for flight attendant seat safety.

Graphic Sheds Light on Impact of Smaller Seats and Rows on Safety

Embedded in the regulations governing commercial airline safety is a graphic that may offer evidence that smaller seats and rows on airplanes may affect passengers’ safety. The DOT graphic shows the “head strike zone” for a seated flight attendant and is intended to offer guidance on seat design to reduce the risk of injury to flight attendants during takeoff and landing but apparently a similar analysis has not been undertaken as to passengers.

The head strike zone is the space that must be kept clear so that the occupant’s head avoids contact with an adjacent seat in the event of an impact. The graphic suggests that shortening the distance between passenger seat rows may have increased the likelihood of a passenger suffering head trauma from the seat in front.

Lawsuit Seeks FAA Rules on Minimum Seat and Aisle Sizes

FlyersRights.Org filed a petition for rulemaking requesting that the FAA set rules on minimum seat and aisle sizes. In its petition, FlyersRights.org documented that economy class seat pitch, that is the distance between a point on one seat and the same point on the seat in front of it has shrunk from an average of 35 inches to 31 inches and in some airplanes, 28 inches. Among other things, FlyersRights.Org argues that passengers may not be able to evacuate quickly in a crash due to the cramped seating. Another concern is the risk of passengers developing potentially dangerous blood clots in their legs.

The FAA declined to draw up regulations on seat size, arguing that its rulemaking authority does not extend to comfort – and that safety tests indicate the smaller seats pose no danger. The FAA also maintains that flight attendants and passengers have the same injury protection regulations.

FlyersRights.Org filed a petition for review with the U.S. Court of Appeals for the District of Columbia, challenging the FAA’s refusal to engage in rulemaking and its unsupported conclusions about passenger seat safety. In recent opinion, the Court ordered the FAA to reexamine whether shrinking seats have safety consequences and to provide scientific evidence as to why narrower aisles and tighter seats are not safety issues.

This post was written by Bruce H. Stern of STARK & STARK, COPYRIGHT © 2017
For more legal analysis go to The National Law Review

Cannabis Prop 65 Liability: Lessons Learned from the Dietary Supplement Industry

The cannabis industry appears to be next on the liability “hit list” under California’s notorious Proposition 65 statute. In June 2017, more than 700 Prop 65 notices were served on California cannabis businesses. Companies in this emerging market should start mitigating risk under Prop 65 now. Fortunately, lessons can be learned from the dietary supplement industry’s expensive Prop 65 battles over the past decade.

California’s Prop 65, also known as the Safe Drinking Water and Toxic Enforcement Act, requires a warning on all products that contain chemicals known to cause cancer or reproductive harm, even in amounts a fraction of what is deemed safe by federal standards. Prop 65 has caused havoc within the dietary supplement and herbal product markets over the past decade, led by a cottage industry of “bounty hunter” attorneys who have weaponized the statute, ostensibly in the public interest but in reality as a lucrative for-profit business. These bounty hunters are now turning their attention to cannabis. Though amendments to the statute were adopted in 2016 for the purpose of reducing this abuse, Prop 65 litigation will continue and cannabis companies must stay vigilant.

Many businesses faced with the necessity of using a Prop 65 warning have no concern with the impact that a warning may have on sales or with consumer confidence in the product. After all, who would look twice at a Prop 65 warning on motor oil or insect repellent? Like the dietary supplement industry before them, however, many cannabis businesses will resist including a warning that the product contains a chemical known to cause cancer or reproductive harm. Many cannabis products rely on the consumers’ belief that the product is harmless and even therapeutic. For many, this will be an important business decision that may give rise to expensive mistakes − a decision should be made with an understanding of the basis for Prop 65 liability and exposure.

What Is Prop 65 and What Does It Require?

Prop 65 was passed by California voters in 1986 after an aggressive lobbying campaign by environmental and public health activists. The stated purpose of Prop 65 was to improve public health. The general consensus, however, is that Prop 65 has placed an undue burden on California businesses while achieving no significant impact on public health over the past 30 years.

As noted above, Prop 65 requires a warning on all products that contain chemicals known to cause cancer or reproductive harm. There are more than 900 such chemicals listed, and marijuana smoke has been included on the list since 2009.

For a warning to be acceptable under Prop 65, it must (1) clearly make known that the chemical involved is known to cause cancer and/or birth defects and/or other reproductive harm and (2) be given in such a way that it will effectively reach the person before he or she is exposed. The warnings must be “clear and reasonable,” meaning that the warning may not be diluted by other language. Various means of communicating the warning are allowed, including product-specific warnings on a posted sign or shelf, warnings on the product label or electronic warnings for internet purchases.

Important Exemptions

There are several important exemptions to Prop 65 that make a warning unnecessary. Businesses with nine or fewer employees are exempt from the statute. There also is an exemption involving chemicals that occur naturally in food. Lead, for example, will be considered naturally occurring only if it “is a natural constituent of a food” and is not added as a result of human activity such as pollution or poor manufacturing processes. The burden is on the company to prove the exemption, however, which is typically time-consuming and expensive.

Another important exemption is provided by “safe harbor” exposure levels for many chemicals on the Prop 65 list, below which no warning is required. The listed chemicals include additives or ingredients in pesticides, food, drugs and common household products. Most food contains at least some level of one or more of these substances. Prop 65 safe-harbor levels, however, are in many cases around 1,000 times lower than levels set by the Food and Drug Administration (FDA), Environmental Protection Agency (EPA) and World Health Organization (WHO). The exposure levels established by Prop 65 are often lower than what occurs naturally in fruits, vegetables, grains and even drinking water.

For example, the Prop 65 limit for lead is 0.5 mcg / day, which is below the amount of lead naturally found in many fruits, vegetables and herbs grown in non-contaminated soil. By comparison, the FDA allows 75 mcg / day and the European Union allows 250 mcg / day for lead. The European Food Safety Authority estimates the average adult consumes around 50 micrograms per day, which is 100 times the Prop 65 limit. It is nearly impossible to manufacture herbal products, including cannabis, without trace amounts of lead. Therefore, despite the “naturally occurring” exemption, discussed above, it can be dangerous to simply assume that an herbal product, including cannabis, complies with safe-harbor levels.

Only about 300 of the more than 900 Prop 65 chemicals have specific safe-harbor levels. For those chemicals without a safe-harbor limit, the burden will be on the cannabis business to establish that the subject chemical is within a safe range. This typically requires expensive testing, the results of which may be open to multiple interpretations as to whether a warning is required.

Determining the Exposure Level

Determination of the “exposure level” also is an important consideration. Prop 65 focuses on the level of a chemical to which the consumer is actually exposed. Although a product may have a very low amount of a chemical on the Prop 65 schedule that is below the safe-harbor level, liability under the statute may nevertheless be triggered based on the recommended serving size. It is advisable for companies to work with a laboratory that specializes in Prop 65 testing to determine the cumulative exposure level in order to verify the recommended serving size.

Enforcement of Prop 65

Prop 65 is enforced through litigation brought by the government or by private attorneys that “act in the public interest.” It is the threat of these private lawsuits that causes such consternation among those targeted with Prop 65 liability. After a 60-day notice period, the attorney may file a civil suit against the offending company. Typically, the plaintiff will demand that the defendant provide warnings compliant with Prop 65, pay a penalty, and either recall products already sold or attempt to provide health hazard warnings to those who purchased the products.

Though purportedly brought in the public interest, it is the collection of penalties and attorneys’ fees that in reality drives this litigation. Prop 65 allows individuals who bring suit to recover 25 percent of the penalties awarded, which by statute is calculated at $2,500 per violation per day. Amendments made to Prop 65 in 2016 allow for certain voluntary actions by the defendant – reformulation of the product, for example – in lieu of penalties. The threat of paying the plaintiff’s attorney’s fees makes litigating Prop 65 cases potentially very expensive. The attorney is incentivized to drag out the litigation, and the longer the case goes on, the more difficult it becomes to resolve because of the mounting fees.

This framework has created a cottage industry of Prop 65 “bounty hunter” lawyers who affiliate with “public interest” organizations that bring these cases for profit. According to the California Attorney General, 760 settlements were reported in 2016 with total settlement payments of more than $30 million. Attorneys’ fees accounted for 72 percent of that amount. The 2016 amendments to the statute have attempted to address these abuses to some extent by requiring a showing that the public benefits derived from the settlement are “significant” and by requiring contemporaneous record keeping for fees and costs sought to be recovered. Prop 65 litigation nevertheless continues to burden many industries in California, now including the cannabis industry. For Prop 65 liability, prevention is certainly less costly than a cure.

 

This post was written by Ian A. Stewart of Wilson Elser © 2017

For more legal analysis go to The National Law Review

Why the Billable Hour Is Here to Stay

While you may grind away on files day in and day out through six-minute intervals, tracking the time can prove distracting and burdensome. The billable hour remains the standard method for billing with lawyers, and this has been the standard for decades. Despite the longevity of the billable hour, plenty of lawyers believe they can find a better way to bill their clients.

The Argument Against the Billable Hour

Lawyers from a variety of fields have raised arguments against billing by the hour. One of those arguments is how you only have so many hours in the day that you can work. In addition, an hourly billing setup fails to acknowledge how different legal services will have differing value. Some have made the claim hourly billing encourages inefficiency and incompetence because the longer it takes a lawyer to finish the job, the more they get paid. This shows a conflict of interest because a lawyer might feel tempted to spend the maximum hours on a file.

Does the Billable Hour Remain the Standard?

Gradually, lawyers have started to charge through alternative methods. Some of those methods include:

  • Flat fees

  • Results-based fees

  • Contingency fees

  • Fees by stages

In today’s world, a client asks more value for his dollar, and plenty of lawyers are happy to accommodate. Still, the billable hour reigns supreme even despite talk of a massive shift. The billable hour hasn’t taken hold as of yet. However, it has been growing. In fact, a recent study found how the alternative fee arrangements were up five percent from several years ago to 22 percent since.

Revolutionizing the Law Industry

Plenty of firms have seen this and started to shift their own law practice out of the curiosity of what a billable-hour free firm might look like. Since the early 1990s, lawyers have predicted the eventual end of the billable hour, but it has never truly ended. Until a more alternate billing comes, it’s unlikely that the billable hour will ever fully go away. In fact, some law firms will always prefer it, and unless the clients demand a change, the billable hour serves both lawyers and clients in a way where an alternative arrangement might prove to be more difficult.

Education of the Client

Bill Rice, a partner at Bennett Jones, says that his national firm offers the alternate billing proposal. Many times clients will ask for the alternate billing, but in the end, they wind up choosing the hourly billing because they don’t know how to judge if the alternate arrangement will be fair. Rice says, “While we’ve moved forward with breaking the billable hour, we still haven’t reached the appropriate level of comfort with alternate billing.” Essentially, clients are unable to find a better way to judge the value or to maintain control over it.

This is where research comes in play. If you decide to want to take an alternative route, education is key. By explaining the process, average cost, and the highest potential cost, your client can decide which avenue he or she may want to take.

Where Alternative Billing Does Best

In some cases, the billable hour continues to be the best fit for the attorney and/or law firm. This includes the markups and discounts and how much time a lawyer puts into the case. Sometimes blended rates come into play due to work getting divided amongst the firm. In these circumstances, you will experience a blend of hourly rates.

Where fixed-fee billing (say that five times fast) works best, might be when an event an activity is scheduled. Some of the possible examples include:

  • Patenting

  • Immigration visa

Fixed-rate billing also allows an attorney to exit a case with less worry. Sometimes with the billable hour, there’s that worry of a possible lawsuits malpractice. When you lay everything on the table, the client knows what he’s getting himself into. As a result, you have a more satisfied group of clients because they feel they got the value out of what they paid for.

The Problem of Efficiency: The Billable Hour

You could spend up to an hour trying to fix a leaky faucet and getting nowhere in the process, even though the problem is fairly simple. The same could be said about the billable hour. You want to provide attorneys with some incentive on why they should work hard to finish the case fast. It’s true that some of the other billing methods might not necessarily be cheaper than the billable hour, but it gives clients a fixed budget to work with and peace of mind knowing it won’t go higher.

The billable hour isn’t likely to go anywhere in the future. New methods of billing will, however, probably come up as lawyers get more creative on how to bill their clients for their legal services. The world today focuses more on value-driven legal services. For that reason, it seems like a good incentive to provide lawyers with a reason to up the quality of their services while giving clients predictable budgets they can count on to stay the same.

This post was written by Jaliz Maldonado  of PracticePanther © Copyright 2017
For more legal analysis go to The National Law Review