Category: Uncategorized

Jury Rules for NCAA in First Sports Concussion Case Tried to Verdict

In a landmark decision, a Pennsylvania jury ruled in favor of the defendant National Collegiate Athletic Association (NCAA) in the first sports concussion case tried to verdict. In a 10−2 decision, the jury in Onyshko v. NCAA, No. C-63-CV-201403620 (Wash. Cty. Ct. Comm. Pleas, PA) (filed 6/27/14, originally filed in federal court on 12/17/13) found that the NCAA was not negligent in its dealings with plaintiff Matthew Onyshko when he was a student at California University of Pennsylvania.

In 2008, five years after his college football career ended, Onyshko was diagnosed with amyotrophic lateral sclerosis (ALS), a progressive neurodegenerative disease usually diagnosed between age 40 and 70. Onyshko and his wife sued NCAA for claims of negligence and loss of consortium. The complaint stated that, during his college football career, Onyshko experienced numerous, repeated blows to the head, lost consciousness for at least 30 seconds on three separate occasions, and that repeated blows to the head caused him to develop ALS.

The NCAA is the main regulatory body for college sports to promote safe participation. According to Onyshko, the NCAA knew from at least the 1980s that football-induced brain injuries cause long-term damage, but it failed to adequately supervise, regulate, and minimize the risk of long-term brain injury resulting from repeated head impacts.

NCAA’s pre-trial motion to dismiss, which argued that the complaint failed to adequately plead the existence of the legal duty, was denied by the court on December 3, 2014. Subsequently, NCAA moved for summary judgment, arguing that (1) the action was barred by the statute of limitations, (2) NCAA did not have a duty to plaintiff, (3) NCAA did not breach a duty to protect against the long-term risks of concussion and (4) plaintiff’s alleged head injuries incurred while playing college football did not cause his later development of ALS. In denying the motion, the court found that plaintiffs’ expert opinions created a genuine issue of material fact about whether concussive and sub-concussive blows to the head while playing collegiate football could cause ALS.

After years of litigation and substantial discovery, the case went to trial, with jury selection beginning on April 29, 2019. During the trial, which lasted almost a month, Onyshko, now 38 years old, used a computerized device controlled by eye movement to give testimony. According to Onyshko, he sustained at least 20 concussions as a college football player during which he blacked out, but was never taken off the field in a stretcher. He further testified that he did not report the episodes to a trainer because he did not know that these were an issue. He said that the diagnosis of ALS in 2008 was a shock because it did not run in his family.

During cross-examination, the NCAA’s attorney brought up Onyshko’s deposition testimony that Onyshko first experienced headaches, dizziness, and memory problems in 1999, before he played any collegiate games. Video recordings of games in which plaintiff played were shown to refute plaintiff’s claims of the multiple head injuries he allegedly sustained.

In his closing statement, plaintiffs’ attorney requested compensatory damages of $9.6 million. Deliberation began the afternoon of June 5, 2019. After seven and a half hours, the jury found in favor of NCAA on liability. The plaintiffs announced plans to appeal and re-file the matter as a wrongful death case under Pennsylvania law when Onyshko dies.

© 2019 Wilson Elser

Ubers of the Future will Monitor Your Vital Signs

Uber has announced that it is considering developing self-driving cars that monitor passengers’ vital signs by asking the passengers how they feel during the ride, in order to provide a stress-free and satisfying trip. This concept was outlined in a patent filed by the company in July 2019. Uber envisions passengers connecting their own health-monitoring devices (e.g., smart watches, activity trackers, heart monitors, etc.) to the vehicle to measure the passenger’s reactions. The vehicle would then synthesize the information, along with other measurements that are taken by the car itself (e.g., thermometers, vehicle speed sensors, driving logs, infrared cameras, microphones, etc.). This type of biometric monitoring could potentially allow the vehicle to assess whether it might be going too fast, getting too close to another vehicle on the road, or applying the brakes too hard.  The goal is to use artificial intelligence to create a more ‘satisfying’ experience for the riders in the autonomous vehicle.

This proposed technology presents yet another way that ride-sharing companies such as Uber can collect more data from their passengers. Of course, passengers would have the choice about whether to use this feature, but this is another consideration for passengers in this data-driven industry.

Copyright © 2019 Robinson & Cole LLP. All rights reserved.

For more about self-driving cars, see the National Law Review Communications, Media & Internet law page.

Beware of the Barter: A Cautionary Tale

A recent ruling by Tennessee’s top court sends a strong message: be leery of waiving traditional forms of payment in favor of accepting goods or services. In TWB Architects, Inc. v. The Braxton, LLC, et al., an architecture firm and a cash-strapped developer executed an agreement for the architect to receive a penthouse condominium instead of his design fee. When the developer could not deliver a deed for the condominium, the architecture firm sued the developer for its fees.

So far, the ensuing litigation has lasted over 10 years and, most recently, resulted in an opinion by the Supreme Court of Tennessee that reversed summary judgment in favor of the architect and remanded the matter back to the trial court for still more proceedings.

The parties originally entered in a standard Architect Agreement, whereby the plaintiff, TWB Architects, was to be paid for its design services based on two percent of the construction costs for the project. After failing to obtain sufficient financing for the project, the defendant, The Braxton, informed TWB that it could not pay the design fees and suggested TWB accept a condominium in the project as payment instead. TWB agreed, and the parties executed the Condominium Agreement.

Thereafter, TWB’s owner acted as though he owned the condominium contemplated in the deal, which just so happened to be a penthouse. He invested nearly $40,000 in upgrades and repeatedly referred to the penthouse as “his penthouse.” In December 2008, he moved into the penthouse and represented himself as its owner.

However, shortly thereafter, issues arose with Braxton’s ability to deed the condominium to TWB’s owner. At that point, TWB decided to change course. It claimed that it was still entitled to the original design fee under the Architect Agreement and filed a mechanic’s lien for the unpaid fees. Braxton claimed the Condominium Agreement had acted as a novation, nullifying the Architect Agreement and, accordingly, TWB’s ability to collect its fee thereunder.

The trial court granted summary judgment in favor of TWB, holding it could still recover its design fees because there was insufficient evidence that the parties intended a novation by substituting the Architect Agreement for the Condominium Agreement. The court of appeals affirmed, but the Tennessee Supreme Court reversed. The Supreme Court found that summary judgment was improperly granted because disputed questions of material fact existed about whether TWB and Braxton intended a novation when they executed the condominium agreement.

Unless the parties can settle the matter, the case will now require a trial to determine whether TWB can recover its fees. It’s unknown whether TWB’s owner is still living in the penthouse.

This case is a great example of how a tempting barter – like accepting a penthouse from a cash-strapped developer – may sound like a nice solution at the time, but can lead to further headaches and protracted litigation.

© 2019 BARNES & THORNBURG LLP

For more developer-architect concerns, see the National Law Review Real Estate law or Construction Law pages.

Sometimes You Feel Like a Nut

In a spit decision, the First Circuit reversed a dismissal of a putative class action in a Massachusetts consumer protection case. Dumond v. Reily Foods Co., No. 18-2055 (1st Cir. Aug. 8, 2019)

The defendant New England Coffee Company sells a “Hazelnut Crème” coffee. The plaintiff sued because the coffee contains no nut – it’s all coffee, no nut, only nut flavored. The district court dismissed the complaint without leave to amend on the basis that the complaint wasn’t sufficiently specific. After rejecting that ground for dismissal and also rejecting a preemption argument, the majority noted that the defendants argued as an alternative ground to support the dismissal that the factual allegations complaint failed to state a plausible claim, and that’s the part of the decision that interests us.

Whether the label was deceptive, Judge Kayatta, writing for himself and Judge Torruella, opined was a question of fact. While the label said it was “100% Arabica coffee” and listed no hazelnut as an ingredient, Judge Kayatta said that perhaps a reasonable factfinder could conclude the name of the product was sufficient, without having to read the “fine print,” “much like one might easily buy a hazelnut cake without studying the ingredients list to confirm that the cake actually contains some hazelnut.”

Responding to the dissent, Judge Kayatta wrote:  “Our dissenting colleague [Judge Lynch] envisions a more erudite reader of labels, tipped off by the accent grave on the word “crème,” and armed perhaps with several dictionaries, a bit like a federal judge reading a statute. We are less confident that ‘common parlance’ would exhibit such linguistic precision. Indeed, we confess that one of us thought “crème” was a fancy word for cream, with Hazelnut Crème being akin, for example, to hazelnut butter, a product often found in another aisle of the supermarket.”

Judge Kayatta further wrote: “None of this is to say that our dissenting colleague’s reading is by any means unreasonable. To the contrary, we ourselves would likely land upon that reading were we in the grocery aisle with some time to peruse the package.”

In her dissent, Judge Lynch said that she disagreed with the majority that this presented a “close” question – in her view “a reasonable consumer plainly could not view the phrase ‘Hazelnut Crème’ as announcing the presence of actual hazelnut in a bag of coffee which also proclaims it is ‘100% Arabica Coffee.’”  Aside from noting that the package ingredient only said it included 100% Arabica coffee and never said it contained an actual nut, Judge Lynch explained how the word “Crème” means, both in the dictionary and in common parlance, a cream or cream sauce as used in cookery or a sweet liqueur, with the latter usually “used with the flavor specified” (citing Webster’s) – in short, “hazelnut Crème” clearly indicates a flavoring, not an ingredient. The majority’s hazelnut cake analogy was inapt because cakes are “made up of many ingredients.” .

My thoughts on this opinion are, first, it sounds like a lively chambers discussion, and second, I wonder about the degree to which each of the members of the panel does his or her own grocery shopping, and, if so, whether he or she reads labels, and whether this, consciously or not, influenced their thinking.

Since according to the majority opinion, either Judge Kayatta or Judge Torruella thought “Hazelnut Crème” meant hazelnut butter (really? in coffee? And despite the fact no dairy product was listed on the label?), did the majority reason that it follows that a reasonable consumer could be confused, because obviously the members of the majority are reasonable consumers? As noted above, the majority stated that “we” would “likely” realize there was no actual hazelnut in the coffee “were we in the grocery aisle with some time to peruse the package.” Are they saying that’s not the reasonable consumer standard –someone with time to peruse a package? It’s unreasonable to have them look at the ingredients? Or is the majority saying “likely” isn’t good enough to avoid a jury question?

©2019 Pierce Atwood LLP. All rights reserved.

CFPB Decision on “GSE Patch” Revives Debate About Prudent Underwriting

The Consumer Financial Protection Bureau (CFPB) recently announced that it will allow the so-called “GSE patch” to expire in January 2021.[1] This patch permits Government-Sponsored Entities Fannie Mae and Freddie Mac to buy loans even though the borrower’s debt-to-income (“DTI”) ratio exceeds the standard limit of 43%.[2]

The CFPB’s decision revives a long-standing debate about what constitutes a creditworthy loan. By eliminating the patch, the DTI ratio of 43% will become an absolute rule, making any loans with higher DTI’s ineligible for GSE funding.[3]

This type of bright-line rule—focused on a single component of a loan—has already drawn criticism as myopic.[4] Some have pointed out that, based on recent studies, DTI alone is a poor predictor for default of prime and near-prime loans.[5] For example, in each year since 2011, the 90-day delinquency rate for loans with DTI ratios over 45% has actually been lower than that for loans with DTI ratios between 30% and 45%.[6]

In fact, some studies indicate that adequate compensating factors can completely offset any minimal increase in risk associated with a higher DTI.[7] Yet, under this new rule, a borrower with a 44% DTI cannot qualify for a GSE loan, notwithstanding any number of other positive factors in the loan file.

It is entirely possible that this new decision could harm consumers, contrary to the CFPB’s mandate to protect them. Barring “high” DTI borrowers from accessing GSE loans could, at best, force such borrowers to obtain more expensive and riskier products, and at worst, preclude such borrowers from qualifying for any product at all.[8] Over the last six years, more than 10% of GSE-backed loans have relied on the patch.[9] Eliminating the patch is also likely to have a disproportionately adverse effect on minorities and others living in underserved communities.[10]

The creditworthiness of a loan, we firmly believe, must be evaluated by considering the loan as a whole. Simply isolating one aspect of the loan file such as DTI does not necessarily provide a thorough understanding of the risk profile. Instead, one typically must consider many characteristics beyond DTI–such as credit score and history, LTV and CLTV, asset and cash reserves, type and length of employment, and many more–to assess whether a loan should qualify for credit.[11]

Simply put, a loan typically cannot be considered a “bad” loan simply because of one feature. Instead, as some lawyers and courts have colorfully put it, each loan is a “snowflake” that must be considered independently and holistically on its own merits.

[1] See, for example.

[2] The other criteria for a Qualifying Mortgage (QM) include: (1) a lack of negative amortization, interest-only, or balloon features; (2) fully-documented income verification; (3) a total of points and fees less than 3 percent of the loan amount; and (4) a fully amortized payment schedule no longer than 30 years, with a fixed rate for at least five years, and all principal, interest, taxes, insurance, and other assessments included. See “Qualified Mortgage Definition for HUD-Insured and Guaranteed Single-Family Mortgages,” 78 Fed. Reg., 75215 (December 11, 2013); “Loan Guaranty: Ability-to-Repay Standards and Qualified Mortgage Definition under the Truth in Lending Act,” 79 Fed. Reg., 26620 (May 9, 2014); “Single-Family Housing Guaranteed Loan Program,” 81 Fed. Reg., 26461 (May 3, 2016).

[3] This rigid model stands in stark contrast to the FHA, VA, and USDA, which have no maximum DTI requirement. See, at page 2.

[4] See, for example.

[5] Id. at page 1; see also, e.g., Richard Green, “The Trouble with DTI as an Underwriting Variable—and as an Overlay,” Richard’s Real Estate and Urban Economics Blog, December 7, 2016.

[6] See(see Table 2).

[7] See page 10 and footnote 33.

[8] Id. at page 7.

[9] Mortgage Rule (see Table 1).

[10] Mortgage GSE Patch.

[11] (see Table 2) (noting that credit scores and LTV ratios might predict default more accurately than DTI ratios).

© 2019 Bilzin Sumberg Baena Price & Axelrod LLP
This article was written by Kenneth Duvall and Philip R. Stein of Bilzin Sumberg.
For more CFPB regulation updates, see the National Law Review Financial Institutions & Banking Law page.

ICE May Visit Your Company or University Campus – a Quick Checklist and Guidance

Lately, Immigration and Customs Enforcement (ICE) has been more active in making arrests of undocumented individuals. Statistically, however, the number of arrests are very small and the “bark” is much bigger than the “bite”. Nonetheless, it is helpful for employers and other stakeholders to know what the required protocols and duties are if ICE shows up, employee rights, and bystander rights. Below is a quick checklist to help you along with important guidance.

Major Points

  • Immigration is a civil matter, not criminal. The majority of ICE warrants are administrative civil warrants.

  • ICE priorities are arresting those with criminal convictions and those who have been previously ordered removed (absconders). ICE may pursue these activities in public areas.

  • Anybody arrested by ICE has the right to counsel.

  • ICE agents are federal employees that are working as directed. Nonetheless, it is the policy of most employers that ICE enforcement activities focusing on the  personal immigration issues of an individual shall not take place on company property.

  • If an ICE agent does attempt to arrest someone on company property, do not interfere as that will complicate matters. However, please contact your manager and they will coordinate with HR and Legal.

Public versus Private Property

  • Some parts of commercial property would be considered public property (i.e. parking lots shared by multiple employers) .

  • However, back office and areas where customers are not present are considered private property.

Arrest Warrants

  • Warrants come in many varieties.

  • Immigration warrants are civil administrative actions, not criminal.

  • Immigration warrants are signed by ICE Officers, not a Judge.

  • Immigration warrants do not allow ICE to enter private areas without consent.

  • If an ICE agent is seeking entry to a private area, it is the policy of most companies to deny such access. You should ask the ICE agent for a copy of the warrant, their name, and contact your manager.

  • In very rare instances, ICE may invoke “exigent circumstances” and make entry without a warrant.

Your Rights

 Generally speaking if you have a personal encounter with ICE:

  • You should not grant entry to any private areas.

  • You have the right to remain silent.

  • You have the right to ask “Am I free to go?” If they say “yes,” you may walk away.

  • If detained, you have the right to counsel.

  • If you are a foreign national, you have the right to contact your Embassy or Consulate.

  • You do not have to sign any document that you do not understand.

  • If you are stopped for questioning but not arrested, you may refuse a search. But the Officer may pat you down if they suspect you have a weapon.

Non-Immigrants must Carry Evidence of Legal Status

Section 264 (e) of the Immigration and Nationality Act requires every foreign national 18 years of age and over to carry with them and have in their personal possession at all times evidence of their status such as an I-94, work permit, or green card at all times.

ICE and Foreign Students   

  • ICE has jurisdiction over F-1 foreign students and J-1 exchange visitors.

  • ICE will routinely meet with the Designated School Official (DSO) who oversees F-1 and J-1 students on campus.

  • ICE may obtain limited private information about F-1 and J-1 students including their home addresses.

UNIVERSITY AB-21 REQUIREMENTS  

In 2017, the California Legislature passed AB-21 (codified in Education Code Section 66093) requiring Universities to take certain affirmative steps to notify students on at least a quarterly basis of ICE activities on campus. This includes the following:

  1. Quarterly E-Mail Update: E-mail to students, faculty, and all employees advising them about ICE activities and reminding them of their rights and obligations should ICE seek to take enforcement actions on campus against individuals.
  2. The University Intranet should include the following required information for students, faculty, and employees to access:
    • Notify University of ICE Activities:  Encourage those on campus to report an ICE visit.
    • Point of Contact at University for Personal ICE Issues: The University must designate a contact for students, faculty, and staff to contact if they need assistance
    • Emergency Family Contact: Can proactively notify the University in case they need to notify someone that a student, faculty, or staff has been detained by ICE.
    • ICE Detainee Locator: Should you need to find where an individual is being held in ICE custody, you can try the ICE detainee locator here. You will need their 9 digit Alien Registration Number (aka A#) and Country of Birth, or name, country of birth, and date of birth.
    • Legal Assistance: List of organizations that can assist with detention and removal issues.
    • Accommodation for Student Absence due to ICE Matter: Should a current student be unable to attend classes due to an ICE action, the University must take reasonable efforts to accommodate the students, including whenever possible  maintenance of financial aid and a seamless transition back to school.
    • Confidentiality: The University must refrain from disclosing personal immigration information about students, faculty, and staff to the greatest extent possible consistent with state and federal requirements.

GUIDANCE TO EMPLOYERS IF ICE INITIATES AN ICE AUDIT

  • If ICE issues a civil subpoena for an I-9 Notice of Inspection to an employer, the employer should request an extension of time to surrender the I-9’s. Absent an extension, ICE will require that they be ready 3 days later.

  • At a later time (frequently 6 to 12 months later), ICE will give the employer an opportunity to make technical corrections for minor errors on the I-9’s. There will be no monetary fines for technical errors that are corrected.

  • For substantive errors (i.e. the form is not signed or dated by the employee or employer, or failure to itemize the documents that HR looked at the time of hire etc.), ICE will fine – typically $2,000 per I-9 with a substantive error. A missing I-9 is also a substantive error.

  • If ICE determines that some of the employees are not work authorized (and their documents are not genuine), they will issue a Notice of Suspect Documents. The employer must then must meet with each employee on the list, and absent an error or misunderstanding, must timely terminate the employee. If a large number of employees will need to be terminated, the employer can request ICE for additional time to find replacement workers – ICE will sometimes grant an extension to do this.

  • Then ICE will issue a Notice of Intent to Fine for those I-9’s that have substantive violations. If the employer feels that the fines are excessive, they may appeal to the U.S. Department of Justice Office of the Chief Administrative Hearing Officer.

California AB 450 Notice Requirements After an ICE I-9 Audit Begins

  • If your company receives an I-9 Notice of Inspection from ICE, you must post a notice and notify any Union – all within 72 hours. The posting must be in the language that the majority of the workers converse in. If in doubt, post it in both English and Spanish.

  • Fines for violation of the notice requirements can be up to $10,000 per violation.

Here is the required posting notice issued by DLSE:
English version 
Spanish version
FAQ’s from DLSE can be found here.

  • In addition, each time ICE comes back with findings in the form of a Notice of Technical Corrections and also later on with a Notice of Suspect Documents (to terminate certain employees), each affected employee must be notified as well as any Union – all within 72 hours.

  • In addition, the employee has a right to counsel at their own expense when an employer is reviewing their I-9 with them.

ICE IMAGE Program

IMAGE is a voluntary partnership initiative between the federal government and private sector employers. The initiative is designed to foster cooperative relationships and to strengthen overall hiring practices and self-policing of I-9’s.  It can be used as a negotiating tool if a company is audited by ICE.

What does ICE agree to do as part of IMAGE?

  • IMAGE was designed as a partnership initiative between the government and private sector employers. To that end, ICE is committed to working with IMAGE participants in the following ways:

  • ICE will waive potential fines if substantive violations are discovered on fewer than 50 percent of the required Forms I-9.

  • In instances where more than 50 percent of the Forms I-9 contain substantive violations, ICE will mitigate fines or issue fines at the statutory minimum of $216 per violation.

  • ICE will not conduct another Form I-9 inspection of the company for a two-year period.

  • ICE will provide information and training before, during and after inspection.

For more information on Image see here.

Copyright © 2019, Sheppard Mullin Richter & Hampton LLP.

For more information see the National Law Review Immigration Law page.

New York’s New Child Victims Act Expands Opportunity for Filing Abuse Claims and The Path for Victims’ Justice

This week, a one-year “revival” period of statute of limitations began for individuals who assert civil claims of child abuse to file claims against institutions and individuals pursuant to New York’s Child Victims Act, even if those claims had already expired and/or were dismissed because they were filed late. The premise behind the Child Victims Act is that children are often prevented from disclosing abuse due to the social, psychological and emotional trauma they experience.

Additionally, the  Child Victims Act, also expands the statute of limitations for bringing criminal claims against alleged perpetrators of child sexual abuse, and  permits alleged victims of these crimes to file civil lawsuits up until they reach age 55. This aspect of the legislation will have a significant impact on the volume of criminal cases, and even more so civil lawsuits, 385 of which were filed in the first hours of the revival period, with hundreds more geared up for filing in the upcoming weeks and months. Indeed, the New York State court system has set aside 45 judges specifically to handle the expected crush of cases.

Institutional Changes Following the New Child Victim’s Act

Religious, educational and other institutions that are committed to providing a safe environment for children should be thinking about how they can implement safeguards against child abuse within their institutions. An important step is keeping internal lines of communication with staff and families open, as well as educating staff and leadership as to their reporting obligations under New York law and on how to provide appropriate support if child abuse is suspected.

The Child Victims Act joins the Sex Harassment Bill also signed into law by Gov. Cuomo as significant changes by New York Legislators involving sexual abuse and harassment in New York State.

©2019 Epstein Becker & Green, P.C. All rights reserved.

War of the Words: Ninth Circuit Reverses Judgment for the Insurer in Rare War Exclusion Case

In Universal Cable Prods. LLC v. Atlantic Specialty Ins. Co., 2:16 cv-04435 PA, (9th Cir. July 12, 2019), the Ninth Circuit reversed the district court’s determinations as it relates to the application of two war exclusions.

In the summer of 2014, Universal Cable Productions wasfilming a television series, Dig, in Jerusalem.  During filming, hostilities arose in the region as Hamas, a Palestinian political movement, began firing rockets from Gaza into Israel.  The ongoing and escalating Israeli-Palestinian strife caused Universal to halt production, and ultimately move it out of the area.  Not surprisingly, the move resulted in significant expenses, prompting Universal to file a claim under its television production policy in order to cover the costs.

The insurer denied coverage for the claim, relying, for apparently the first time, on the applicability of the policy’s war exclusions.  The exclusions, which the insurer argued were triggered by Hamas’ firing of rockets, barred coverage for expenses resulting from: war, warlike action by a military force, or insurrection, rebellion, or revolution.  Universal countered that the exclusions are not applicable because the terms in the exclusions had a specialized meaning in the insurance context, and the Hamas action did not comport with that meaning.  The district court, refusing to apply any specialized meaning and instead using the plain meaning of the terms, sided with the insurer and found that Hamas’ actions clearly constituted war or warlike action which triggered the application of the exclusions.  Universal appealed.

On appeal, the Ninth Circuit disagreed with the district court’s analysis—namely the district court’s refusal to apply the alleged specialized meaning of the exclusions’ terms—finding that a provision of the California Civil Code required the application of specialized meaning when the meaning has been developed from customary usage.  The appellate court first found that the principal construing any ambiguity in favor of the insured was not applicable.  In doing so, the court noted that “the typical concerns animating [that principle] do not exist here.”  Next, the court found that because the terms “war” and “warlike action by a military force” had acquired a special meaning via usage, that special meaning must be followed and failure to do so “is reversible error.”  The court determined that in the insurance context, “war” and “warlike action by a military force” required the existence of “de jure” or “de facto” governments and because the court found that Hamas is neither, the exclusions did not work to bar coverage. Consequently, the court reversed the district court’s ruling in favor of the insured.

©2011-2019 Carlton Fields, P.A.

Article by Roben West of Carlton Fields.
For more insurance law, see the National Law Review Insurance Reinsurance & Surety law page.

Seven Tips for Writing the Perfect Lawyer Biography

At least 73% of everyone looking to hire a lawyer search online long before they ever make that first call. In addition, it is said that the attorney biography page is the most visited page on law firm websites. This makes having a good set of online biographies a requirement for driving business to your legal practice. It should be simple: just write a little bit about yourself and your accomplishments, right?

Unfortunately, it is not always that easy.

Each type of biography has its own quirks and requirements. In addition, while most lawyers are excellent communicators and writers, that can actually work against them when dealing with a finite space for sharing credentials in a marketing setting.

Here are my top 7 tips for creating excellent lawyer biographies and some important faux pas to avoid.

1. Open with a strong statement

The biography is a vehicle for selling legal services so even if it is in a third person voice, it should be about connecting your experience with the legal problems you solve. The first paragraph of your biography is important real estate for starting a conversation with the person you are trying to connect with.

You can also increase your online search results by adding in specific keywords in the first line and headings such as your first and last name, firm name, location, and most prominent practice area. Education and personal information should be saved for the end of the biography.

2. Cover the basics

Make sure to include all the nuts and bolts that people will want to follow up on to ensure that you are who you say you are. Specifically, you should cover:

  • Contact Information: Location, phone number, social media links, email address.
  • Education: Undergraduate and law school credentials, as well as any post-graduate degrees.
  • Work History: This is not always necessary but be sure to share any noteworthy positions.
  • Practice Areas: When possible be concise.
  • Published Cases or Representative Clients: Do not forget to Include high-profile clients and pro bono work soliciting permission to publish when necessary.
  • Publications: These should be publications you have written or have been interviewed by.
  • Speaking Engagements: Lectures, podcasts, and panel discussions are great to include.
  • Awards: Your biography should contain both legal and civic awards.
  • Board Memberships: Every instance should be its own entry or bullet point.
  • Bar Associations & Legal Organizations: Highlight leadership positions first, general memberships after and include years of participation if possible.
  • Clerkships: Judicial clerkships are important to list.

3. Cover the extras

Next, you will want to make sure that you include anything extracurricular that will make you stand out in a crowd. Leadership positions (even outside of a legal industry), community service, and board memberships are great additions to this section. This is also the right place to include a personal line or two about your interests, hobbies, or family to inspire further connection with your audience.

4. Have a relevant, professional photo

Here is an area where many lawyers fall short. Remember, this may be the only time your prospective new client sees you before deciding to request your help. Give your best possible first impression by investing in professional headshots that reflect your best qualities and your personal brand. Take professional headshots regularly to keep your online image current.

5. Create several biographies for the best web engagement

The professional biography that you have on your website should be different than the one you have on sites like Avvo or Martindale-Hubbell. This gives each of your biographies a unique content score with the search engines which improves your overall search results rankings. It also means that potential clients see unique pieces of content that have not been cut-and-pasted to save time.

Consider creating a bank of biographies for each of your online biographies, your website, and printed biography. Be sure to calendar a reminder to review them once per quarter for updates. In addition, develop a different “short” version that can be used when you speak, guest post on a blog, or are published in a legal journal.

6. Avoid the biography pitfalls

There are a couple of issues that I see often when I review clients’ online and offline biographies. Some of the worst offenders when creating a biography include:

  • Informal photos: Stay away from using an old repurposed image of you at your brother’s wedding. And, unless you have an MFA in graphic design, stay away from photoshopping yourself into a different setting.
  • Being too wordy:  There is no need to include everything you have ever done in your legal career in your online biography. Skip the fluff and focus on the highlights. The ideal length is between 300-500 words.
  • Big blocks of text: Too much text tires the reader, and odds are good you will lose their attention even before they hit the second paragraph. Keep paragraphs to between 2-4 sentences to incorporate white space. Be sure to read your biography out loud to note any drawn-out sentences.
  • Third person formal: Stay away from calling yourself “Ms. or Mr.” in your biography. This sounds pretentious and can be off-putting for new clients. Instead, simply use your full name once at the beginning and your first name after that. It is important to note that there is a lot of debate about whether you should write your biography in third person (he, she, them) or first person (I, me, my). The answer will come from your target audience, your practice area, and your personal brand.

7. Try creative, interactive elements

You can make your biography page stand out even more by incorporating engaging elements like vcards, printable versions, or introductory videos – as long as they are professionally produced. Another wise choice is to include a disclaimer if you list your email address stating that sending an email to you does not indicate a legal attorney-client relationship unless an engagement letter has been signed.

Conclusion

Writing the perfect lawyer biography does not have to be a difficult exercise. Like any other marketing exercise, start with your potential client and work backward. Your biography is a great opportunity to connect with people before you meet them. Create text that is search-friendly, concise, and filled with the highlights of your career. This will allow potential clients and colleagues to “cut through the noise” and recognize you for the great lawyer that you are.

© 2019 Denver Legal Marketing LLC

This article is by Meranda M. Vieyra of Denver Legal Marketing

For more on Legal Marketing, see the National Law Review Law Office Management page.

FDA Proposes New Graphic Warnings for Cigarettes

The Federal Cigarette Labeling and Advertising Act (FCLAA), as amended by Section 201 of the Family Smoking Prevention and Tobacco Control Act (TCA; signed into law on June 22, 2009) directs the U.S. Food and Drug Administration (FDA) to develop graphic warnings for cigarette packages and promulgate regulations requiring the warnings within 24 months of enactment of the TCA. Accordingly, FDA issued a final rule requiring graphic warnings on June 22, 2011. However, the original graphic warning images did not survive a First Amendment challenge by the tobacco industry (see R.J. Reynolds Tobacco Co. v. FDA), and FDA withdrew the rule.

In response to a lawsuit filed against FDA by a coalition of public health groups lead by The Campaign for Tobacco-Free Kids, the American Academy of Pediatrics, the American Heart Association and others, the U.S. District Court for the District of Massachusetts ruled that FDA “unlawfully withheld” or “unreasonably delayed” a revised graphic warning rule because nearly a decade had passed since the TCA was enacted. In March 2019, the Court ordered FDA to publish the new proposed rule by August 2019 and issue a final rule in March 2020. FDA promulgated a notice of proposed rulemaking on the new cigarette health warnings on August 15, 2019 (available here).

The proposed rule would require advertising and packages of cigarettes sold in the United States to include one of thirteen warnings:

    • WARNING: Tobacco smoke can harm your children.
    • WARNING: Tobacco smoke causes fatal lung disease in nonsmokers.
    • WARNING: Smoking causes head and neck cancer.
    • WARNING: Smoking causes bladder cancer, which can lead to bloody urine.
    • WARNING: Smoking during pregnancy stunts fetal growth.
    • WARNING: Smoking can cause heart disease and strokes by clogging arteries.
    • WARNING: Smoking causes COPD, a lung disease that can be fatal. (This statement is paired with two different images.)
    • WARNING: Smoking reduces blood flow, which can cause erectile dysfunction.
    • WARNING: Smoking reduces blood flow to the limbs, which can require amputation.
    • WARNING: Smoking causes type 2 diabetes, which raises blood sugar.
    • WARNING: Smoking causes age-related macular degeneration, which can lead to blindness.
    • WARNING: Smoking causes cataracts, which can lead to blindness.

Under the proposal, each statement is paired with a graphic image, except the COPD statement which is paired with two different images. The proposed labels, with the accompanying graphic images, can be found here. Among other requirements, the top fifty percent (50%) of the front and rear panels of the package and 20% of the top of the advertisement would need to provide a graphic warning.

For more information, see FDA’s press release, landing page for Cigarette Health Warnings, and Web Feature.

© 2019 Keller and Heckman LLP

Article by Food and Drug Law at Keller and Heckman LLP.

More on tobacco regulation on the Biotech, Food & Drug law page of the National Law Review.