Category: Uncategorized

A Warning to One, A Warning to All?

As part of their ongoing effort to combat misinformation about COVID-19, federal agencies have issued warning letters to more than 150 companies. While companies know that a warning letter is serious and requires immediate attention, perhaps the greater challenge is what often follows: the so-called “piggyback” class action lawsuit.[1] And recently, plaintiffs’ attorneys have gone one step further: they have been filing “piggyback” class actions not against the company that received the warning letter but against competitors that make similar products.

Because warning letters are publicly available and posted prominently on various agency websites, consumers can view the warning letter and then file a “piggyback” class action against the recipient of the warning letter. Indeed, oftentimes these “piggyback” class actions merely recast the government agency’s allegations as claims for violations of various state consumer protection statutes. For example, in November 2013, the U.S. Food and Drug Administration (FDA) sent a genetic testing company a warning letter ordering it to stop selling and marketing one of its genome tests because the company had failed to show that the test actually worked. Five days later, the company was hit with a proposed class action for allegedly violating several California consumer protection laws.[2] Dozens of other companies – from hotel chains to cereal manufacturers – have also been hit with piggyback class actions based on warning letters.

But things have changed recently. Consumers have targeted companies that never received a warning letter. These proposed class actions are based largely – sometimes entirely – on the allegations in a warning letter directed to another company. In these cases, the plaintiffs’ theory is that, because the products are similar, the substance of the warning letter “applies equally” to the similar products.

This trend has continued in the COVID-19 era. On January 17, 2020, a week before the first reported case of COVID-19 in the United States, the FDA sent a leading hand sanitizer manufacturer a warning letter telling the company to stop advertising its product as one that can prevent an array of diseases, including Ebola, MRSA, and the flu. The FDA explicitly challenged the product’s claim that it “kills 99.99% of most common germs” because the claim allegedly lacked adequate scientific support. On the heels of FDA’s warning letter, at least six class actions were filed against the manufacturer.[3] Although the claims differ slightly, all of the lawsuits are premised on the same basic theory articulated in the FDA warning letter—which all of the complaints cite.

Then came the copycat piggyback lawsuits. The manufacturer of a competing hand sanitizer was sued in February and March 2020.[4] In one of the complaints, the plaintiff alleged that because both products have the same active ingredient, the FDA’s allegations about labeling apply to both products. Separately, a plaintiff sued a large retailer in a class action making similar claims about its generic hand sanitizer.[5] In that case, the plaintiff argued that the retailer’s labeling was also misleading because it had the same active ingredient as the brand name and implied that its product was as effective as the brand name.

So what should companies do? Here are proactive steps to protect against these lawsuits.

Review labels and advertisements. To protect against “piggyback” class actions, companies should ensure that they have reliable scientific evidence to support their products’ stated claims and alleged benefits, particularly if a competing product that makes similar claims has received a warning letter. Additionally, if a company compares its product to competing products, companies should check to see whether those competing products have ever been the subject of a warning letter.

Monitor guidance from relevant governmental agencies. Companies should also actively monitor guidance from relevant federal or state agencies. During the COVID-19 pandemic, agencies have issued and amended guidance more often than they typically do. For example, in March 2020 the FDA issued guidance temporarily relaxing regulatory requirements for production of certain hand sanitizer products. The FDA then revised that guidance on March 28, and again on April 15, 2020. Companies should stay abreast of the most recent guidance to ensure that they are complying with laws and regulations.

Monitor warning letters and enforcement actions against competitors. Of course, a company that receives a warning letter should seek legal advice to determine how to respond. But even if a company does not itself receive a warning letter, companies might learn about federal agencies’ warning letters and enforcement actions against other companies, particularly competitors or companies that make similar products. Where the products are similar, enterprising plaintiffs’ attorneys could repurpose a warning or enforcement action against one company’s product into the basis for a class action against its competitors. If a competitor has received a warning letter or been the target of an agency enforcement action, legal counsel may help assess their situation compared to the company’s.

Conclusion

It is a challenging time for companies in so many ways. These lawsuits might be the beginning of a trend of class actions filed both against companies whose products appear on the radar of governmental agencies during the COVID-19 pandemic and against companies that make similar products. The plaintiffs’ bar is closely monitoring agency warning letters. Companies should take that into consideration.

[1] John E. Villafranco and Daniel S. Blynn, The Case of the Piggyback Class Action, Nutritional Outlook (Sept. 2012) (defining a piggyback lawsuit as “a class action lawsuit filed by a private litigant against an advertiser or manufacturer after a federal agency…has already taken regulatory action against the same company on behalf of the public.”)

[2] Aeron v. 23andMe, Inc., No. 13-cv-02847 (S.D. Cal. filed Nov. 27, 2013); see also Dan Munro, Class Action Filed Against 23andMe, Forbes (Dec. 2, 2013, 11:04 PM), https://www.forbes.com/sites/danmunro/2013/12/02/class-action-law-suit-f….

[3] DiBartolo v. GOJO Industries, Inc., No. 20-cv-01530 (E.D.N.Y. filed Mar. 24, 2020); Miller v. GOJO Industries, Inc., No. 20-cv-00562 (N.D. Ohio filed Mar. 13, 2020); Jurkiewicz v. Gojo Industries, Inc., No. 20-cv-00279 (N.D. Ohio filed Feb. 9, 2020); Gonzalez v.Gojo Industries, Inc., No. 20-cv-00888 (S.D.N.Y. filed Feb. 1, 2020); Aleisa v. Gojo Industries, Inc., No. 20-cv-01045 (C.D. Cal. filed Jan. 31, 2020); Marinovich v. Gojo Industries, Inc., No. 20-cv-00747 (N.D. Cal. filed Jan. 31, 2020).

[4] David v. Vi-Jon, Inc., No. 20-cv-00424 (S.D. Cal. filed Mar. 5, 2020); Sibley v. Vi-Jon, Inc., No. 20-cv-00951 (N.D. Cal. filed Feb. 7, 2020).

[5] Taslakian v. Target Corp., No. 2:20-cv-02667 (C.D. Cal. filed Mar. 20, 2020)

© 2020 Schiff Hardin LLP

For more on product’s COVID-19 claims, see the National Law Review Coronavirus News section.

Confusion in Bankruptcy Courts Regarding Debtor Eligibility for PPP Loans

The Small Business Administration’s (SBA) rules and regulations concerning the eligibility of businesses for Paycheck Protection Program (PPP) loans when the business is involved in bankruptcy have recently been a source of substantial uncertainty, with the nationwide split of authority in bankruptcy courts. While these cases deal with a very small minority of PPP recipients and are a relative novelty in that regard, these decisions could foretell future issues for companies who have received PPP loans but are later forced to file Chapter 11, specifically regarding their eligibility for loan forgiveness.

The SBA is enabled with emergency rulemaking authority to adopt rules and regulations to manage application and qualifications for PPP loans under the CARES Act. Pursuant to this authority, the SBA publishes Interim Final Rules (IFR). The SBA’s April 28, 2020 IFR expressly disqualified applicants who are debtors in a bankruptcy proceeding at any time between the date of application and when the loan is disbursed.[1] Several companies in bankruptcy proceedings, whose loans have been denied, have challenged the SBA’s rulemaking authority in this regard, leading to a nationwide split on this issue in bankruptcy courts.

Specifically, these courts have rendered opinions to decide whether the SBA can impose a policy disqualifying a business in bankruptcy proceedings from participating in the PPP and whether the SBA violates other laws for doing so.[2] More than a dozen cases have been decided in the last two months, with the recent decisions highlighting the confusion that bankruptcy courts face in discerning the intent of Congress and the purpose of the CARES Act.

In decisions amounting to a majority of court decisions to date, bankruptcy courts have ruled in favor of the debtor on the merits or a request for injunctive relief.[3] One decision in favor of the debtor, with detailed analysis, has been rendered in the In re Gateway Radiology Consultants, P.A. bankruptcy case. In that case, the bankruptcy court concluded that excluding Chapter 11 debtors conflicts with the intent of Congress and the purpose of the CARES Act. The bankruptcy court determined that collectability was not a criterion for a qualification which Congress intended to focus on and rejected the SBA’s argument that debtors had a higher risk of misusing PPP funds for non-covered expenses.[4]

On the other hand, in a minority stance are bankruptcy courts that have found that the IFR is not in violation of the CARES Act, and that the SBA has not exceeded its statutory authority under the APA. Some of these courts point to the extreme urgency with which the CARES Act was enacted, which they say necessitated clarifying rulemaking, as well as the historical broad authority granted by Congress to the SBA which allows for such rulemaking in areas where the CARES Act is silent.[5]

Given the large number of PPP recipients and the potential for a dramatic increase in the number of companies forced to file for bankruptcy protection in the near future, the ultimate resolution of this issue may have significant implications for the future. Varnum will continue to follow the current case split, as well as their possible implications for other debtors that may have received a PPP loan pre-filing and will seek to have the loans forgiven as part of the Chapter 11 process.

[1] See Interim Final Rule, 13 C.F.R. Parts 120-21, Business Loan Program Temporary Changes; Paycheck Protection Program – Requirements – Promissory Notes, Authorizations, Affiliation, and Eligibility (RIN 3245-AH37), at p. 8-9.
[2] The laws invoked are under the Administrative Procedures Act (the “APA”) 5 U.S.C. § 706(2)(C), APA 5 U.S.C. § 706(2)(A), and under the Bankruptcy Code’s antidiscrimination provision, 11 U.S.C. § 525.
[3] In re Skefos, No. 19-29718-L, 2020 WL 2893413 (Bankr. W.D. Tenn. June 2, 2020) (order granting the Debtor’s motion for PI); In re Gateway Radiology Consultants, P.A., No. 8:19-BK-04971-MGW, 2020 WL 3048197 (Bankr. M.D. Fla. June 8, 2020) (enjoining the SBA from disqualifying the Debtor and finding that the decision-making of the SBA was not reasoned); Diocese of Rochester v U.S. Small Bus. Admin., No. 6:20-CV-06243 EAW, 2020 WL 3071603 (W.D.N.Y. June 10, 2020).
[4] In re Gateway Radiology Consultants, P.A., No. 8:19-BK-04971-MGW, 2020 WL 3048197, at *15-17.
[5] Schuessler v United States Small Bus. Admin., No. AP 20-02065-BHL, 2020 WL 2621186 (Bankr. E.D. Wis. May 22, 2020) (denying declaratory and injunctive relief and dismissing the complaints in three consolidated Chapter 12 cases); In re iThrive Health, LLC, Adv. Pro. No. 20-00151 (Bankr. D. Md. June 8, 2020) (finding Debtor would not prevail on the merits and denying preliminary injunction; but granting Debtor’s motion to dismiss the bankruptcy without disclosing if Debtor intends to move to reinstate the bankruptcy after PPP funding is approved as contemplated by Debtors in Arizona and S.D. Florida); In re Henry Anesthesia Assoc., 2020 WL 3002124 (Bankr. N.D. Ga. June 4, 2020).

© 2020 Varnum LLP
For more on the topic, see the National Law Review Bankruptcy & Restructuring law section.

When in Doubt, Cross-Appeal!

The Law Court recently addressed an issue of great importance to appellate practitioners: does a party need to cross-appeal a favorable judgment in order to preserve an argument providing alternate grounds for affirmance, when the lower court rejected that argument? The answer, per the Law Court’s decision, is “yes.” As the Law Court’s decision makes clear, and as my predecessor on this blog has noted, a cross-appeal is the only way to ensure that you will be able to raise the argument on appeal.

The decision, Reed v. Secretary of State, which is also very interesting substantively, involved a challenge to the Secretary of State’s determination that proponents of a citizen initiative had gathered enough signatures to place the initiative on the ballot. The petitioner’s challenge required the Superior Court to interpret statutes, 21-A M.R.S. § 903-E and 4 M.R.S. § 954-A, regulating the activities of notaries. Intervenors in the action argued in the Superior Court that the statutes were unconstitutional. The Superior Court declined to reach that argument, instead ruling in favor of the intervenors on other grounds.

Intervenors did not cross-appeal after the petitioner filed a notice of appeal. Instead, in the Law Court, intervenors argued that the statute was unconstitutional as an alternate grounds for affirmance.

The Law Court did not address intervenors’ argument. Instead, it wrote in a footnote:

We have no reason to address the constitutionality of [Section 903-E or Section 954-A] because . . . none of the parties who appealed from the Secretary of State’s decision ended up arguing that either provision is unconstitutional.

(emphasis added).

The take-away? If the trial court rules against you on any argument you make, cross-appeal if you want to raise that argument before the Law Court!

This is to some degree a peculiarity of Maine courts. Generally, you can raise any argument you want on appeal to sustain a judgment in your favor. The key to determining whether to cross-appeal is usually whether you want a part of the judgment changed. But the Law Court takes a different view. There is some question about whether this is the right rule – after all, usually there is no standing to appeal unless you have been adversely impacted by the judgment. But it is the rule.

©2020 Pierce Atwood LLP. All rights reserved.

For more on legal appeals, see the National Law Review Civil Procedure section.

Reasons for Communicating Clearly With Your Insurer Regarding the Scope of Coverage Before Purchasing Cyber Insurance

Purchasing cyber insurance is notoriously complex—standard form policies do not currently exist, many key terms setting the scope of coverage have not been analyzed by courts, and cyber risks are complicated and constantly evolving.  Given these complexities, prospective policyholders should consider, before purchasing a cyber policy, communicating their expectations for coverage in clear and specific terms to their insurer.  Such communications, which can be conducted through an insurance broker, can help a policyholder obtain policy terms that accurately reflect their desired coverage.  Additionally, these communications create a written record of the contracting parties’ understanding, which may prove useful should the insurer later contend that coverage is not available consistent with these discussions and the policyholder’s expectations.

Singling out a key policy provision and examining the coverage issues that provision can present helps illustrate the potential value of such communication.  Currently, the high-profile Mondelez International, Inc. v. Zurich American Insurance Co. litigation provides an excellent opportunity to examine the coverage issues that can arise from one such provision:  the so-called “war exclusion.”  This exclusion, a variant of which is included in almost every insurance policy by insurers seeking to limit their exposure to potentially catastrophic losses that might result from war, may sound straightforward but can be difficult to apply, as the line between war and other conflicts is often fuzzy and fact-specific.  Compare In re Sept. 11 Litig., 931 F. Supp. 2d 496, 508 (S.D.N.Y. 2013), aff’d, 751 F.3d 86 (2d Cir. 2014) (concluding that the September 11, 2001 attack by Al Qaeda was an “act of war”), with Pan Am. World Airways, Inc. v. Aetna Cas. & Sur. Co., 505 F.2d 989, 1015 (2d Cir. 1974) (holding that the hijacking of an airplane by the Popular Front for the Liberation of Palestine was not the result of “war”).  This is especially true in the cyber context, where understanding the precise nature and purpose of a cyber attack is often difficult.  While the Mondelez case does not involve a dedicated cyber insurance policy—it concerns a property insurance policy that includes coverage for “physical loss or damage to electronic data, programs, or software, including physical loss or damage caused by the malicious introduction of a machine code or instruction”—it is still instructive because the insured seeks coverage for a cyber attack and the insurer disputes coverage based on the war exclusion, which almost all cyber insurance policies contain in some fashion.

The dispute in Mondelez arose when the policyholder suffered over one hundred million dollars in losses due to network disruptions caused by the NotPetya ransomware attack and sought coverage under their property insurance policy for “physical loss or damage to electronic data, programs, or software . . . .”  See Complaint, Mondelez International, Inc. v. Zurich American Insurance Co., No. 2018L011008, 2018 WL 4941760 (Ill. Cir. Ct., Oct. 10, 2018).  In response, the insurer denied coverage based on the war exclusion that precluded coverage for “loss or damage directly or indirectly caused by or resulting from . . . hostile or warlike action in time of peace or war, including action in hindering, combatting or defending against an actual, impending or expected attack by any:  (i) government or sovereign power (de jure or de facto); (ii) military, naval, or air force; or (iii) agent or authority of any party specified in i or ii above.”  In short, the policyholder believed it bought broad coverage for ransomware attacks, but now must litigate whether the NotPetya attack was a “warlike action” by a government “agent,” under circumstances where numerous sources link the cyber attack to Russia and its armed forces (though Russia denies any involvement).  While the Mondelez case is still in the early stages, and details of any communications among the parties regarding the wording and meaning of the war exclusion are not publicly known, the mere existence of this litigation highlights the challenges that can face a policyholder who learns only after a substantial loss that their insurer reads a key policy provision to preclude coverage that the policyholder expected to be available.

As noted above, communication prior to policy placement can be a valuable tool to secure clear wording for key policy provisions and potentially avoid this kind of situation.  While this may seem obvious, such communication is often overlooked by policyholders more focused on other policy details like limits and premiums.  A close review of the war exclusion helps illustrate the potential benefits of these communications.  While the precise phrasing of the war exclusion at issue in Mondelez is more typical of property policies than cyber policies, war exclusions in many cyber policies arguably apply to conduct not only by state actors but also by quasi-state actors or groups with political motives.  For this reason, policyholders may want to seek language specifying that the exclusion only applies to acts by a military force or a sovereign nation, as many cyber attacks are attributed to quasi-state actors or non-state groups with political ends, or are the subject of debated attribution.  Similarly, some war exclusions apply not only to specified conflicts such as war, invasion, and mutiny, but also to more amorphous conduct like “warlike actions”—policyholders seeking greater certainty may wish to avoid such language.  Further, as with any exclusion, avoiding overbroad introductory language (like that excluding any loss “in any way related to or arising out of” war) is generally in a policyholder’s interest.  And even if a war exclusion is broadly worded, some insurers will include a carve-back creating an exception for losses due to attacks on computer systems or breaches of network security, thus preserving cyber coverage even when the war exclusion might otherwise apply.  Given the impact that small changes in wording can have on the scope of coverage, communicating clearly—with respect to the war exclusion or any other key policy provision—can play a crucial role in assuring that a policyholder secures wording that provides the coverage they desire.  Of course, an insurer may respond to a policyholder by refusing to revise a policy term or insisting that a desired coverage is unavailable, in which case the policyholder has the benefit of understanding a policy’s purported scope prior to purchase and the opportunity to investigate coverage from other insurers.

In addition, communication allows a policyholder to make a record of their expectations as to the scope of coverage, which may prove useful if an insurer later refuses to provide coverage consistent with the expectations that the policyholder conveyed.  Many courts interpreting disputed policy language put substantial weight on an insured’s reasonable expectations and often rely on communications between policyholders and insurers to support a policyholder’s reading.  See, e.g., Monsanto Co. v. Int’l Ins. Co. (EIL), 652 A.2d 36, 39 (Del. 1994); Celley v. Mut. Benefit Health & Acc. Ass’n, 324 A.2d 430, 435 (Pa. Super. 1974); Ponder v. State Farm Mut. Auto. Ins. Co., 12 P.3d 960, 962 (N.M. 2000); Michigan Mutual Liability Co. v. Hoover Bros., Inc., 237 N.E.2d 754, 756 (Ill. App. 1968).  As the recently-issued Restatement of The Law of Liability Insurance observes, where “extrinsic evidence shows that a reasonable person in the policyholder’s position would give the term a different meaning” than the one advanced by the insurer, the policyholder’s proposed meaning will often control.  Another recent case addressing a war exclusion (completely outside the cyber context) demonstrates the role such communications may play in interpreting disputed policy provisions, as the court’s analysis of the exclusion included a review of the communications during the underwriting process between the insured, the broker, and the insurer and an examination of what those communications indicated about the parties’ intent for the exclusion’s application.  Universal Cable Prods., LLC v. Atl. Specialty Ins. Co., 929 F.3d 1143 (9th Cir. 2019).  While contested coverage provisions should generally be read in an insured’s favor so long as that reading is reasonable—even in the absence of favorable underwriting communications—the cases above underscore the potential value in establishing during the underwriting process a record of the insured’s expectations as to the scope of coverage (especially in an area such as cyber insurance, where guidance like prior court decisions is limited).

For these reasons, policyholders should consider clearly communicating their intentions to their insurer when purchasing cyber insurance—this may include communicating not just questions about the scope of coverage and requests for modifications to the policy, but also the concerns animating those questions and the goals behind those requested modifications.  When having such communications with cyber insurers, policyholders will generally want to work closely with an insurance broker knowledgeable about cyber insurance, and may also want to consult experienced coverage counsel.  Clear communication during the underwriting process can play an important role in helping policyholders obtain cyber coverage that will meet their expectations should they one day confront a cyber event.

© 2020 Gilbert LLP

ARTICLE BY Daniel I. Wolf at Gilbert LLP.

EPA Issues Compliance Advisory Regarding Pesticide Devices Making Claims to Kill the Novel Coronavirus

In late May, the U.S. Environmental Protection Agency (EPA) issued a Compliance Advisory providing the public with information regarding the limits of governmental review of the efficacy of pesticide devices, especially pesticide devices that claim to kill the novel coronavirus that causes COVID-19 (coronavirus).  Per the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), chemical pesticides must be reviewed and approved by EPA for efficacy claims made by the pesticide registrant before marketing is permitted.  In contrast, FIFRA prohibits pesticide device sellers from making false or misleading claims about the safety or efficacy of their pesticide devices, but it does not require EPA approval before a pesticide device may be sold.  Thus, pesticide devices (an instrument or other machine) designed to kill a pest do not undergo pre-market review for efficacy.

Because there is no pre-market review of pesticide device efficacy, and since EPA “is receiving a steady stream of tips/complaints concerning potentially false or misleading claims” associated with pesticide devices being sold with claims of killing coronavirus, EPA’s Compliance Advisory  sets out some cautionary statements:

“Please note that ozone generators, UV lights and other pesticide devices may not be able to make claims against coronavirus where devices have not been tested for efficacy or safety for use against the virus causing COVID-19 or harder-to-kill viruses.  In addition, because EPA does not review these data as part of a registration review process, these claims are not supported by any government review.” [Emphasis in original].

The Advisory reviews EPA’s process for approving chemical pesticides, and specifically the process EPA uses to maintain its “List N”—a list of disinfectants that meet EPA’s criteria for use against coronavirus.  The Advisory notes that consumers’ success in killing viruses using List N pesticides depends on following all label directions including heeding the recommended contact time, which is the amount of time the pesticide product needs to remain wet on a surface.

The Advisory also describes the limits prescribed by FIFRA for pre-market review and approval of pesticidal devices and warns that EPA cannot confirm whether, or under what circumstances, such pesticide devices might be effective against the spread of coronavirus.  The Advisory specifically cautions that “consumers should be aware that pesticidal devices making such claims have NOT been reviewed and accepted by EPA”.

Pesticide device sellers are allowed to make certain efficacy claims, as long as they possess supporting data.  FIFRA does impose penalties for making false or misleading labeling claims about the safety or efficacy of a pesticidal device.

The Advisory concludes with ‘Compliance Concerns’ and warns sellers who attempt to profit from sales of pesticides or pesticide devices with unapproved or unsupported claims for use against coronavirus:

“EPA intends to pursue enforcement against products making false and misleading claims regarding coronavirus. EPA is working with e-commerce platforms to remove/prohibit these fraudulent and/or otherwise inefficacious products from the marketplace. EPA is also coordinating with the U.S. Department of Justice and other federal partners to bring the full force of the law against those selling or otherwise distributing violative products.”

© 2020 Van Ness Feldman LLP

For more EPA regulation, see the National Law Review Environmental, Energy & Resource law section.

NLRB Approves Company’s Baseball Cap Rule

Under Section 8(a)(1) of the National Labor Relations Act (“NLRA”), employers are permitted to maintain uniform and dress code policies in the workplace, so long as such policies do not prohibit employees from wearing union insignia, absent special circumstances, such as health and safety concerns. While seemingly straightforward, application of this rule can be quite meticulous in practice. A recent National Labor Relations Board (the “Board”) case, World Color (USA) Corp., a Wholly-Owned Subsidiary of Quad Graphics Inc., 369 NLRB No. 104 (June 12, 2020), provides guidance as to when an employer can restrict apparel logos at work.

When Can You Limit Apparel to Company Logos?

World Color (USA) Corp., is a Wisconsin company that maintains a facility in Nevada, where it prints commercial inserts for newspapers.

In early 2011, World Color distributed a set of mandatory guidelines to its employees containing a uniform and dress code policy requiring that all employees wear authorized company uniforms as a condition of employment, and to dress and groom professionally at all times. The guidelines permitted employees to accessorize the uniform, but required the accessorizing to be “in good taste and in accordance with all safety rules.” The guidelines further required that if “hair… could potentially get caught in [production equipment], it must be secured… with a hairnet or other means. Baseball caps are prohibited except for [company] baseball caps worn with the bill facing forward.” World Color further prohibited wearing buttons and pins on the production floor as a safety hazard.

After the union filed a charge, the Administrative Law Judge (ALJ) found that the policy was unlawful because it prohibited employees from wearing baseball caps with union logos and from displaying union insignia on hats.

After several appeals, however, the Board found that the policy did not prohibit employees from engaging in the protected activity of wearing caps bearing union insignia. Rather, the cap policy merely required employees to wear a company cap to align with the overall company uniform. The Board noted that employees were not prohibited from wearing union insignia on the company cap as long as they were “in good taste and in accordance with all safety rules”. As such, the Board found that the uniform policy was lawful because it permitted employees to wear union insignias on company caps as long as they did not pose a safety risk.

What This Decision Means for Employers

Uniform and dress code rules are just one of a great number of issues that employers face in ensuring that their workplace policies comply with the mandates of the NLRA. The NLRA applies to almost all private sector employers nationwide, whether their employees are currently represented by a union or not. Employers should be aware of the level of scrutiny that can be placed on their workplace policies — by unions, by ALJs, and by the Board. Employers should be on the look-out for uniform and dress code provisions that:

  • Specifically prohibit wearing union insignia;

  • Broadly prohibit wearing all non-company insignia, even without reference to unions;

  • Require company or supervisor approval or authorization of union insignia;

  • Unreasonably limit the size and shape of union insignia on uniforms;

  • Prohibit union insignia without documented specific and legitimate safety reasons.

We recommend that employers consult with experienced labor counsel to revise and review their workplace policies to fully comply with all state and federal requirements, including the NLRA. This way, employers will be in the best position to protect the right to efficiently and effectively maintain their businesses. Moreover, employers should be aware that even seemingly minor violations of the NLRA may compromise the ability to assert their rights in other contexts, such as possible threats of union organizing.

©2020 von Briesen & Roper, s.c

For more on dress code policies, see the National Law Review Labor and Employment law section.

IMS Insights Podcast: Episode 16-How Attorneys Can Leverage Trial Presentation Consultants to Advance Cases Amid COVID-19

In this episode of the IMS Insights Podcast, we speak with trial presentation advisor Jeff Dahm about utilizing trial presentation consultants amid the COVID-19 pandemic.

 Teresa Barber: Jeff, I want to welcome you. Thank you for being our guest today on the IMS Insights Podcast.

Jeff Dahm: Great. Thanks for having me.

Barber: Tell us a little bit about your background. How did you first become interested in trial presentation?

Dahm: Well, I graduated from college in 1996 and I got a job. I went to the career center. There was no internet in ’96, so I got a job. I went to the career center, found a job at a jury consulting firm as a research analyst and I didn’t know really much about the law and I definitely hadn’t been in a courtroom at that point in my life but I went right in and I worked for a pretty prominent jury consultant setting up jury research projects around the country and it was really fascinating. It was new for me. I didn’t know anything about this and I knew it was for me. I mean I was always a very technical person. I was always setting up computers and helping people with their stuff and their computers and on the emerging edge of computers always but I didn’t really work in computers then.

Dahm: So, when I was working at this jury consulting firm, there was a woman who had her boyfriend was starting up a company that did trial presentation. Well, I didn’t know what trial presentation was, so she’s like, “I know you’d be great with him. Why don’t you go meet him?” So, I went to his office and met him and they hired me and then I started being … Working in trial presentation. So, it was … I made the shift from jury consulting. I mean I knew I liked trial consulting for sure. I knew it was a job for me, I just didn’t think that the jury consulting job was the right fit at that point in my career. So, I used all my technical skills and got this job and so what we did was we started doing trial presentation around the country and it was pretty new in the early 90s.

Dahm: In the mid-90s, it was really new. I mean there wasn’t a lot of trial presentation. It’s like I always had this desire to perform and to be on stage but I have no talent. I can’t sing and I can’t dance but I knew this was my performance. This was my way to be performing because I was really technical and I was really good at being technical and being good under pressure. So, when I started doing this, this satisfied my performance itch that I’ve always had and I loved it and it was just great and I knew that this was going to be my career.

Barber: I was going to say, it sounds like you walked right into the fire and at a really early stage and-

Dahm: I did.

Barber: That role, so there really wasn’t a whole lot of … In terms of best practices and models, you’ve really had to be there at the forefront for a lot of that.

Dahm: Yeah, it was really exciting. It was just … I graduated with a degree in environmental analysis and design and thought I was going to save the world and all of a sudden, I’m in this new career and I was like wow, this is exciting. Traveling the country, setting up courtrooms, working with attorneys. I mean I was 23 years old and this was truly exciting for me. I mean it was just … I was over the moon about this job, this new job I had.

Barber: So, kind of the nexus too of technology, which is a passion, right? And then like you said that so much on the line for presentation in the middle of a trial. What exactly … And I’m sure that it’s evolved too, right? Since the mid-90s, late 90s to today, what are the fundamentals? What does a trial … A hot seat consultant, a trial technician do?

Dahm: Sure. Well, as a basis that hasn’t changed in the 25 years I’ve been in the business, what hasn’t changed is that you’re putting on a show and you’re responsible for everything that the jury and the judge see and it’s a big, big responsibility but that’s your job and so your job is to organize the evidence in your trial presentation software and help the attorney put together the show that you’re going to put on in the courtroom. So, you’ve got to do run throughs, you practice the night before. You make sure you have all of your highlights ready. You make sure you have your deposition clips. It’s putting together any sort of evidence that you would ever need to show a jury and organizing it and being able to call it up really fast in the courtroom and that really hasn’t changed much over the 25 years. That’s the job.

Dahm: I mean sometimes you do less, clients want to do more. Sometimes you do a lot more. Sometimes you’re full throttle. Sometimes you just set it up for them and they go on their own, but it just depends. It’s just all-encompassing in trial for the evidence.

Barber: Very interesting. It sounds like there’s a lot that leads up to it, right? It’s not just showing up and-

Dahm: No.

Barber: You’re putting a presentation forward, how important is a focused strategy for trial presentation? Does that matter?

Dahm: Yeah. Oh sure. I mean every trial presentation consultant has their own sort of method of operation that they do. For me, it’s getting in with the client very early, making sure that they know that I’m here to help them and I’m going to take care of everything, being very organized with anything they give you that they request that you want, you reply back fast. You have to reply fast. You have to get the work done quick and you have to be very efficient and also, you have to be able to speak to attorneys very well. So, that’s the key is you have to be able to roll right into their world and be able to talk and work just as though you were one of them.

Dahm: So, you’re going to different attorneys all around and everybody has different work styles and so the key of a great trial presentation consultant is to be able to meld into the trial team that you’re working with and that is the most important thing. I now schedule a lot of trial techs for courtroom trials and what’s really important in a strategy is a culture fit, to make sure that this tech fits in with you, that you kind of click because I find that the clients that I do the best job for, I click with them. There’s just like a bond, kind of like something you can’t explain like when you meet someone, you click, if you click, then you’re great but I can also make myself click if I have to and that’s the differentiation in a great trial presentation consultant is you blend in, you make yourself blend in in order to let them trust you so that you can be effective in court.

Barber: I was going to say because there’s a lot of trust that gets put in you or in a trial consultant technician because there’s … Really, that attorney has to be able to say, okay, I know that this needs to appear at this point and you’ve got to be able to pick up those cues, so that’s really interesting to have.

Dahm: You have to be able to click, yeah there has to be trust, you’re right. You’re so right that trust is key. Your whole case, their whole case kind of depends on you, what comes up on the screen. So, when you meet these clients the first time, you have to come in there showing them that you can command the room, you can command a presentation and you can get the job done and those are the really key things that I look for in consultants too when we’re placing them with attorneys is they have to be forward. They have to be forward thinkers. They have to be proactive people because those are the ones that do the best in court.

Barber: Yeah. And I want to ask you too, because we’re here, Jeff, in the middle of summer 2020 and we are in a … Really, in a lot of ways, what’s an unprecedented time, a lot of concern everywhere for colleagues, for communities dealing with COVID-19. It’s also the pandemic, we have a global pandemic, placed an unprecedented amount of stress on the court system and we’ve even seen remote trials popping up. First, it was remote hearings, lately remote trials in some places like throughout California. Can you talk to me a little bit about what you’ve been seeing from clients, what you’ve been hearing from the ground and how important it might be for a dedicated trial presentation consultant or someone with that expertise when you’re thinking about what that completely visual and virtual setting … Can you talk to me about what you’re hearing?

Dahm: Yeah, so as I’m sure everybody has realized in the past few months being at home is that most people are not fully comfortable with the scenario of talking to people over a video conference. It’s not natural. It could be exhausting. There’s a lot of other layers that people don’t realize that come with that. As a consultant working around the country, I have been and trial presentation consultants have been working in video conferences, working at this method for years now and this is a very comfortable place for us to be. This is … And also, when you are presenting, because … Okay, so courtrooms that … Most courtrooms are now pushing towards having Zoom hearings, having Skype hearings. This is a really, really common thing that’s happening more and more and I tell you, if a courtroom is not doing it now, they’re going to be doing it soon.

Dahm: This is the way of the immediate future for the next few years and you need to be prepared and when you’re giving an argument, just like in court, there’s a lot of things to think about beyond your argument and you should let a consultant handle that for you. Let your trial presentation consultant run your PowerPoint. You have to let them help and we can display in a video conference the same as we can in court. You can put things up. You can share the screen and this is something that trial techs and trial presentation consultations are good at, manipulating multiple different views for things to go on the screen, coordinating with people and tech. I mean this is our wheelhouse. So, you are doing yourself a huge favor by having the trial presentation consultant on a call for you in a hearing. I mean it’s invaluable as far as I can see.

Barber: Yeah, I was going to ask you, so it sounds like some of the same principles that you apply in trial presentation in a physical courtroom, how, can you talk to us about how you apply those fundamentals and those principles to help clients prepare and move cases along right now?

Dahm: Sure. Well, and I’ve heard this from my clients too, the cases are not going away. Even though, the public … The in-person hearings are not happening, the cases aren’t going away. They’re still moving forward. You’re still going to have to go forward with your discovery. You have to … Your expert witness disclosures, I mean everything is still happening. So, it’s important that you use your trial consultants as you always would to help move your case forward. Send them your video if you have video depositions that need to be prepared. It still has to happen. Let’s say you have to submit your video deposition designations for your trial that’s in July, that still has to happen. These consultants, and we’re ready to go, we are ready to help you just like we always are when you got to be in court. We are just as ready to help you with your online hearing. I mean it’s just as important, so you should treat it that way.

Barber: And we’re seeing … We’re kind of touching on this, you mentioned like just a lot of hearings moving to Zoom or Skype and if we’re not seeing that now, brace for it because it’s coming. So, what tools and resources would you recommend right now for litigators or attorneys just preparing for a virtual in-court scenario, maybe don’t have one scheduled yet but want to be prepared?

Dahm: So, we are all doing our homework here on the presentation side. I know all the trial techs that we work with and also everybody at my firm, other consultants in general, we’re all doing our homework and we’re all making sure that you all can … That the attorneys can do all of their hearings online. I know that we’ve done a lot of Zoom hearings so far. I know that some consultants are creating a virtual courtroom scenario in order to have everybody log in. I mean there’s just … There’s really a lot of work been going on, on the consultant side to make it easier for clients when they do have the hearings. So, reach out to your consultants because they want to help you and they also know what’s happening. They know. They have their pulse on the industry, especially this ever-changing industry as we speak. So, they want to help you and they’re very, very eager to help. Trust me, I’m one of them.

Barber: Jeff, could you … Are you seeing anything about how you think that the pandemic is potentially affecting software that’s used in the firm and the platforms in the industry?

Dahm: Definitely, sure. So, trial presentation software has evolved over the years, but I feel like this is going to cause it to evolve even more. I mean I’ve been testing a lot of software, all of our software that we do use in court to see that it works on a Zoom hearing and it does but I feel like now, the trial presentation software, they’re going to start to create another layer in their software for online hearings because to make sure it’s not buggy because you are still doing a presentation over the internet through another platform and I would think that these trial presentation software companies are going to align with Zoom and create a software to present with Zoom. I mean these are things that I can see coming down the pipe that will be really exciting. I feel like this, as we know, necessity is the mother of invention and this is going to force companies that make trial presentation software to incorporate the video conferencing aspect to it to make it a little easier for us trial presentation consultants.

Dahm: I mean we can do it now. I can display a PowerPoint. I can click through. I mean I’m quite fluid with it on a video call because I do it all the time. I can click through OnCue. I’ve had a couple of Markman so far online that I was able to click through my documents, go back in my PowerPoint. It’s very fluid. However, I see there’s a couple of points that could be better and I know in the next six months, you’re going to start seeing PowerPoint coming out with online things in integrating into their online applications, same with OnCue, Trial Director, pretty much all these things that we use in court, they’re going to have to start talking to Zoom because I know they’re going to want to make it easier for everybody, which is great. So, it’s just really great but us consultants are on that pulse, so if anybody gives me a call, I can tell you what’s going on.

Barber: Hold on, I want to ask you, you raised that suggestion, thinking about the other hot seat operators, the industry, a lot of independent contractors that maybe don’t work with a firm like IMS or The Focal Point, what advice do you have for other folks in the industry right now with so many courts closed?

Dahm: Yeah, so you have to pivot your skills. I mean as a trial presentation consultant, you understand that you have certain skills. You can work under pressure. You can work technically under pressure. You can display evidence fast. I mean these are all things that are going to be needed to do in a video conference hearing too. Assisting in these online hearings is going to be crucial. I mean I think that since this is the beginning of this online hearing generation, clients are going to be slow to react at first, just like in general with the trial presentation consultant.

Dahm: You’re slow to bring people on and then once you have your first hearing and you realize that your PowerPoint is not displayed effectively, then you’re going to give us a call. So, also, a lot of independent trial presentation consultants can record online depositions. That’s a thing that I’ve seen a lot of trial techs that are getting into right now is to assist clients in online depositions. So that’s been a big thing for a couple of my consultants I work with too.

© Copyright 2002-2020 IMS ExpertServices, All Rights Reserved.

Travel Bans are Legal Diplomatic Tools to Further Foreign Policy

Commentary on Travel Bans

In spite of national and international criticism, the Trump Administration continues to use travel bans as part of its strategy to pursue American foreign policy objectives. On May 29th, President Trump signed an executive order on the Suspension of Entry as Nonimmigrants of Certain Students and Researchers.

This order bans Chinese graduate students and researchers who have ties to an entity that “implements or supports” China’s “military-civil fusion strategy.” It also calls on the State Department to consider if Chinese graduate students currently in the U.S. should have their visas revoked.  The goal of this travel ban is to prevent China from acquiring sensitive American technologies and intellectual property that could modernize and enhance the Chinese military.

This is just the latest in a series of travel bans that the Administration has used to pursue foreign policy interests.  In Syria, the U.S. has a tenuous relationship with the Assad regime and the security infrastructure was ravaged by years of civil war and radical insurgents. There is no mechanism for meaningful security and information sharing between the two nations.  The Administration has a full travel ban on Syrians to guard America’s security.

In Iran, the U.S. relationship has been tense for over four decades. The Trump Administration withdrew from the Joint Comprehensive Plan of Action and 1955 amity treaty. However, Trump’s foreign policy objective is to make a new nuclear deal with Iran.  Trump’s travel ban in Iran allows Iranian students to receive visas as a path for dialogue.

Nigeria and America are allies and major trade partners.  However countering the Islamic militant group Boko Haram, which abducted 300 girls in 2014, is also part of America’s foreign policy.  The travel ban in Nigeria is limited to only immigrant visas.  The State Department issued over 99,000 visas in Nigeria in 2019.  Of these only 6,746, or 7%, were immigrant visas.  Banning 7% of Nigerians sends a message that the Nigerian government must to more to counter terrorism. But it stops short of banning all travelers from a main trade partner.

Some Chinese graduate students are now part of a growing list of banned travelers to the United States.  Travel bans are controversial, but our government has the obligation to use all legal tactics at its disposal to pursue its foreign policy goals and to secure its citizens. Travel bans are diplomatic tools, not political weapons.

The opinions and views stated herein are the sole opinions of the author and do not reflect the views or opinions of the National Law Review or any of its affiliates.

© 2020 George Farag
For more on travel bans, see the National Law Review Immigration law section.

U.S. Supreme Court Issues Landmark Ruling in Favor of LGBTQ Employees in the Workplace

Yesterday, in a much-anticipated opinion, the United States Supreme Court held that federal anti-discrimination laws protect LGBTQ employees in the workplace. This ruling provides much needed clarity for employers and resolves a court split in which some federal courts recognized that federal law prohibited LGBTQ discrimination, while others (including those covering Florida, Georgia, and Alabama) stated that LGBTQ discrimination was not unlawful.

This landmark ruling, in Bostock v. Clayton County, Georgia, arises out of three different appeals. In two of the cases, the employees were fired despite having long and successful careers after their employers learned that they were homosexual. In the third case, an employee who initially presented herself as a male announced several years later that she planned to transition to “living and working full-time as a woman.” The employer terminated her immediately.

The law at issue – Title VII of the Civil Rights Act of 1964 (“Title VII”) – prohibits discrimination in employment on the basis of race, color, religion, sex and national origin. However, the law makes no mention of sexual orientation.

Nevertheless, in a 6-3 decision, the Supreme Court held that all three terminations were illegal. In doing so, the Court noted that “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Although several states and municipalities have passed laws and rules prohibiting all or at least some forms of LGBTQ discrimination, this ruling clarifies that both sexual orientation discrimination and gender identity/transgender discrimination are prohibited by federal law throughout the United States.

The federal agency responsible for enforcing Title VII provides the following examples of LGBTQ-related conduct that it considers to be unlawful:

  • Refusing to hire an applicant because she is a transgender woman.
  • Firing an employee because he is planning or has made a gender transition.
  • Denying an employee equal access to a common restroom corresponding to the employee’s gender identity.
  • Harassing a woman because she does not dress or talk in a feminine manner.
  • Harassing a man because he dresses in an effeminate manner or enjoys hobbies that are traditionally associated with women.
  • Harassing an employee because of a gender transition, such as by intentionally and persistently failing to use the name and gender pronoun that correspond to the gender identity with which the employee identifies, and which the employee has communicated to management and employees.
  • Denying an employee a promotion because he is gay or straight.
  • Paying a lower salary to an employee because of sexual orientation.
  • Denying spousal health insurance benefits to a female employee because her legal spouse is a woman, while providing spousal health insurance to a male employee whose legal spouse is a woman.
  • Harassing an employee because of his/her sexual orientation (e.g., derogatory terms, sexually oriented comments, or disparaging remarks for associating with a person of the same or opposite sex).
  • Discriminating against or harassing an employee because of his/her sexual orientation or gender identity, in combination with another unlawful reason, for example, on the basis of transgender status and race, or sexual orientation and disability.

The penalties for non-compliance can be significant, including potential for significant emotional distress and other compensatory damages, punitive damages, and attorney’s fees.

This ruling is particularly significant to employers in jurisdictions like Florida that did not recognize that LGBTQ discrimination was unlawful under federal law. In light of this decision, employers should immediately take the following proactive steps to prevent and prohibit LGBTQ discrimination in the workplace:

  • Review your handbooks and anti-discrimination policies to ensure that sexual orientation and other LGBTQ-related status are included in your list of legally protected categories.
  • Consider adopting policies and procedures protecting the rights of transgender employees. For example, a transgender woman must be allowed to use a common female restroom or locker room facility, and dress code policies should permit employees to follow the dress code matching their gender identity.
  • Update your discrimination and harassment training modules to ensure that LGBTQ-related discrimination and harassment is addressed. Such training should include specific examples of what types of conduct could constitute unlawful discrimination. Managers and human resources personnel in particular need to be made aware that LGBTQ discrimination is unlawful and will not be tolerated.

In addition, employers will need to closely follow EEOC guidance and case law that follows this ruling. For example, as Justice Alito mentioned in his dissenting opinion, it is unclear what impact this ruling will have on employees who want their employers to pay for sex reassignment surgery and treatment.

© 2007-2020 Hill Ward Henderson, All Rights Reserved

For more on SCOTUS’s recent decision, see the National Law Review Civil Rights law section.

New York Compounding Pharmacy Settles Fraudulent Billing and Kickback Allegations in Whistleblower Lawsuit

Upstate New York pharmaceutical companies FPR Specialty Pharmacy (now defunct) and Mead Square Pharmacy, along with their owners, agreed to pay $426,000 to settle fraudulent claims and kickback allegations brought forth by a whistleblower. According to the U.S. government, the pharmacies submitted fraudulent claims for reimbursement to federal healthcare programs for compounded prescription drugs in violation of the False Claims Act and the Anti-Kickback Statute. The pharmacies allegedly sold prescription drugs to federal healthcare program beneficiaries in states without a license, improperly induced patients to purchase expensive custom compounded medications by waiving all or part of the substantial co-payments required under the federal healthcare programs, and paid sales representatives per-prescription commissions to illegally induce writing more prescriptions.

“The rules governing federal healthcare programs require pharmacies dispensing prescriptions to their members to be licensed with the appropriate state authorities to request reimbursement for the cost of the medications.  The pharmacies violated the False Claims Act by dispensing and requesting reimbursement for hundreds of prescriptions of “Focused Pain Relief” cream dispensed to federal healthcare program beneficiaries located in states where the pharmacies were not licensed to operate by the appropriate state authorities, and by failing to disclose that they were not licensed.  The Pharmacies also violated the False Claims Act by billing federal healthcare programs for prescriptions dispensed in states where they had obtained their state licenses under false pretenses, including by failing to inform state authorities that they had previously dispensed drugs in the states without a license and by failing to disclose” one of the pharmacy owners’ “criminal history on pharmacy license applications.”

Additionally, the pharmacies violated the Anti-Kickback Statute by engaging in two separate illegal practices, according to the government.  First, the pharmacies regularly charged federal healthcare program beneficiaries co-payments substantially below program requirements (which often exceeded $100) to induce them to purchase its pain cream, “Focused Pain Relief,” for which the federal healthcare programs paid hundreds and sometimes thousands of dollars each.  Second, the Pharmacies often paid illegal kickbacks to their sales representatives by giving sales commissions for the number of prescriptions written by the physicians the sales reps marketed.

Manhattan U.S. Attorney Geoffrey S. Berman said:  “Pharmacies, like other participants in the healthcare industry, must follow the rules.  The defendants here brazenly flouted basic rules on licensing and kickbacks to line their pockets with dollars from federal healthcare programs.  That is a prescription for intervention by my office and our partners.”

Similar to this case, there have been many instances in which whistleblowers exposed company fraud against the Medicare system.

© 2020 by Tycko & Zavareei LLP

For more on pharmaceutical fraud, see the National Law Review Biotech, Food & Drug law section.