Back to School: Preparing for Campus Unrest

In the wake of the deadly Charlottesville protests, institutions of higher education are under heightened pressure to prepare their campuses for disruption and unrest.  Many colleges and universities have open campuses, enjoy historic visibility in their communities, and place a high value on free speech, expression, and the exchange of ideas, exposing them to unique challenges in planning for protests and civil disobedience.  As this academic year begins, it is critical that campus administrators equip themselves and their communities to manage and, when appropriate, to take affirmative steps to prevent campus unrest, whether initiated by student groups or third parties.

The proactive development of sound and well-thought out policies that balance the value of speech with the institution’s compelling interests in safety and preventing the disruption of campus operations is the foundation for successful management of these situations.  Now more than ever, it is important, even for institutions that have not experienced significant campus unrest in the past, to develop a model response to campus unrest and determine whether institutional policies permit and support this model.

Institutions should review their policies to determine (1) what procedures are in place for managing and monitoring student protests and demonstrations; and (2) how much authority they have to limit or condition access to their campus by third parties.  Thoughtfully drafted campus facilities use, protest, and demonstration policies can effectively set expectations and establish procedures for regulating picketing, protesting, and demonstrating on campus by students and third parties.  But they are not the only policies that demand attention, review, and coordination.  Other policies that may dictate how and to what extent an institution can control or limit civil disobedience on campus may include:

  • Campus trespass policies;

  • Policies that describe the purpose and use of campus;

  • Facilities use and event policies;

  • Academic freedom and other speech or expression policies;

  • Tabling, bulletin board, leafletting, or chalking policies;

  • Emergency response and other communications policies;

  • Student organization policies;

  • Policies that describe or limit the carrying and use of weapons on campus; and

  • Student codes of conduct.

In reviewing their policies, administrators should consider how they limit access to campus, including the rhetoric used to describe the institution’s values, which groups and individuals can reserve and use delineated spaces, and whether campus streets are publicly accessible or can be limited with regard to pedestrian and automobile traffic.  Institutions should ensure that their facilities use policies contain clear and publicized registration procedures requiring sufficient notice of all pertinent details of a proposed event.  Policies must also permit action to move or shut down an event in the event of an emergency, violation of policy, or disruptive conduct, and to undertake disciplinary and law enforcement action where appropriate.

Any number and configuration of campus constituencies can be affected by regulations on campus speech.  Administrators should be mindful of who their institutional policies are intended to target—students or third parties—and draft their policies to clearly cover only the intended targets.  Administrators should also be aware of unintentional targets, considering, for example, how the policies will apply when a student group brings a third party to campus or when the protesters are alumni.

Institutions should be wary of a one-size-fits-all approach.  While it can be instructive to review other schools’ policies, what works for a large, public institution will almost certainly not work for a small, private institution.  In particular, while public institutions must remain keenly aware of the First Amendment implications of limiting speech on campus, private institutions must be careful that their policies do not inadvertently grant students and third parties “rights” that they are not otherwise due and may be difficult for the institution to support.

Now is the time—even if your academic year has already begun—to examine, revise and coordinate implementation of pertinent policies so that administrators may smoothly, safely, and consistently address campus access, facilities use, and potential unrest as it may develop.

This post was written by  Beth Tyner Jones and Liz LeVan Riley and Rebecca C. Fleishman of  Womble Carlyle Sandridge & Rice, PLLC.
More analysis at the National Law Review.

Nursing Home Residents Deprived of Right to Sue for Abuse and Neglect

The current administration has set its sights on another federal rule, seeking to eliminate the ban on pre-dispute arbitration agreements for nursing home residents. Pre-dispute arbitration agreements require elderly adults and individuals with disabilities, as well as their families, to waive their right to file a lawsuit in the courts – before admission to a nursing home. As a condition to entering the nursing home, the prospective resident and his or her representative would be required to submit any dispute, including claims of egregious abuse or neglect, to mandatory arbitration proceedings.

The Current Rule

As the rule currently stands, a nursing home resident cannot be required to waive his or her right to access to the court system. This rule preserves the right of vulnerable nursing home residents to sue for injuries caused by nursing home negligence, abuse, and neglect, including pressure sore infections, suffocation caused by restraints, choking, dehydration-related conditions, gangrene, and even sexual assault.

Decision-making at the Nursing Home Door

Nursing home admission is a stressful and emotional time for the prospective resident and his or her family. Requiring a waiver of rights as a condition of admission, as occurs with pre-admission arbitration agreements, puts the person and his or her family in a time-sensitive quandary, literally at the nursing home door. Under the new amendments, if they refuse to sign away their right to go to court, they can be denied admission to the facility.

Imagine after months of discussions, the decision is finally reached to admit an elderly or disabled individual to a nursing home. This decision often involves the heartache of giving up one’s home and freedom, many possessions, and even treasured pets. The decision is often motivated by a desire to keep the individual safe and ensure that he or she receives required medical care.

But, are nursing home residents safe when they are required to sign away any right to legal accountability for mistreatment or harm in the facility?

How Arbitration is Different than a Lawsuit

Arbitrations take place in private meetings and are confidential. Because arbitrations are not public proceedings like lawsuits and trials, nursing homes have little to fear in terms of lost business or reputation, even if the arbitrator rules against them. To make matters worse, usually the pre-admission arbitration agreements give all the decision-making about the process to the nursing home, including selecting the arbitrator, location, and rules that will govern the proceedings. That removes other safeguards provided by the original rule such as choosing a neutral arbitrator.

Background on the Rule and Proposed Amendment

On October 4, 2016, the Centers for Medicare & Medicaid Service (CMS) published a final rule entitled “Reform of Requirements for Long-Term Care Facilities.” The 2016 final rule amended 42 CFR 483.70(n), prohibiting long-term care (LTC) facilities from entering into pre-dispute arbitration agreements with residents or their representatives. The final rule also prohibited any requirement that a resident sign an arbitration agreement as a condition of admission to a LTC facility.

That final rule sought to preserve the right of vulnerable nursing home residents to sue in court if they suffered injury or abuse.

The American Health Care Association and a group of nursing homes sued for preliminary and permanent injunction to stop CMS from enforcing that requirement. The court granted a preliminary injunction on November 7, 2016. Thereafter, CMS reviewed and reconsidered the arbitration requirements in the 2016 final rule.

In proposed amendments to the rule under the current administration, CMS now seeks to strip nursing home residents of that right by removing the provisions prohibiting binding pre-dispute arbitration in LTC facilities. CMS provides as a reason for this action that a ban on pre-dispute arbitration agreements would “likely impose unnecessary or excessive costs on providers.”

CMS’s Proposed Revisions to Arbitration Requirements

This proposed rule focuses on the transparency surrounding the arbitration process and includes proposes that:

  • The prohibition on pre-dispute binding arbitration agreements is removed.

  • All agreements for binding arbitration must be in plain language.

  • If signing the agreement for binding arbitration is a condition of admission into the facility, the language of the agreement must be in plain writing and in the admissions contract.

  • The agreement must be explained to the resident and his or her representative in a form and manner they understand, including that it must be in a language they understand.

  • The resident must acknowledge that he or she understands the agreement.

  • The agreement must not contain any language that prohibits or discourages the resident or anyone else from communicating with federal, state, or local officials, including federal and state surveyors, other federal or state health department employees, or representatives of the State Long-Term Care Ombudsman.

  • If a facility resolves a dispute with a resident through arbitration, it must retain a copy of the signed agreement for binding arbitration and the arbitrator’s final decision so it can be inspected by CMS or its designee.

  • The facility must post a notice regarding its use of binding arbitration in an area that is visible to both residents and visitors.

This post was written by Denise Mariani of  Stark & Stark.

Will Blockchain Render the Bill of Lading a Relic?

A bill of lading is an old form of legal document.  As merchants in the seventeenth and eighteenth centuries ceased accompanying their goods on ships and entrusted their proper delivery to the carrier, a need arose for a tangible and transferable document evidencing which party was entitled to receive the goods at their destination.  The merchants developed a system in which the sender would obtain a receipt from the ship’s master and convey it to the intended recipient of the goods, who would subsequently present the receipt to the carrier upon delivery to prove his title to the goods.

Today, hundreds of years after the introduction of the bill of lading, technological innovation—and of particular interest, the emergence of blockchain technology—is raising new questions about the future of this venerable document of title.  Recent media accounts report collaborative ventures between traders and financial institutions using blockchain solutions to serve the functions of bills of lading.1  Modern bills of lading still perform the same basic functions as their ancient ancestors: they evidence the title to the goods being shipped, the contract of carriage, and the right to receive and direct the disposition of those goods.  The blockchain solutions emerging in commodities trading seem to have the same functions.  It is fair to ask, then, whether blockchain is a new kind of bill of lading – or is something different that will render the bill of lading a relic.

What is Blockchain and How Does It Work?

While there are various potential applications of blockchain technology,2 it may generally be described as a decentralized, automated system for storing information about transactions among its members.  For our current purposes, we envision a hypothetical blockchain (the “Model Blockchain”) that has the following qualities:

  1. It would be “permissioned”—that is, participants in the Model Blockchain must be admitted by the existing members and the general public would not have access. The members would presumably include the relevant merchants buying and selling the goods, the carriers responsible for their shipment and the financial institutions that finance such transactions.

  2. The Model Blockchain would not be anonymous. Each member would be identifiable by its applicable digital signature, which a computer could match to such member’s name.

  3. The system would be decentralized and “trustless,” in that no single party would validate a transaction. Rather, transactions would be validated by the Model Blockchain’s members collectively.  For example, each member would verify (via computer) basic facts about the transaction to protect against fraud or double spending.  After validation, a transaction would be written into a block in the Model Blockchain. Data in a block would be encrypted such that it is nearly impossible to modify.  This decentralized verification system—referred to as a distributed ledger—is the fundamental characteristic common to all blockchain systems.

In practice, the data for any particular transaction in the Model Blockchain would identify the transferor, the transferee, the carrier, the time of the transaction, what is transferred, and any miscellaneous data the transferor decides to include as “metadata.”  Further, we imagine that the legal title to real-world, tangible assets being transferred via the Model Blockchain would be represented as digital coins (“Blockcoins”).  A Blockcoin would be analogous to a Bitcoin, but would have no monetary value and instead would represent the goods themselves.3  Blockcoins and the Model Blockchain would work in tandem to identify electronically who controls the Blockcoin and thus has title to the goods.

Will Blockchain Supplant the Bill of Lading?

As the breadth of the potential applications of blockchain becomes increasingly clear and the technology becomes more widely accepted, the next step is to determine how blockchain can be implemented within the existing legal framework governing bills of lading.  Under U.S. state law, the rules governing bills of lading and other documents of title are housed mainly in Article 7 of the Uniform Commercial Code (“UCC”)4.  A gating question, therefore, becomes whether the Model Blockchain system constitutes a bill of lading under the UCC.

As you may expect, the vast majority of the applicable UCC provisions were drafted with paper bills of lading in mind.  While new concepts, such as “electronic documents of title,” have been incorporated into the UCC over time to accommodate technological advances, the basic structure still largely employs concepts foreign to the electronic frontier, such as “bearer,” “issuer,” or “copy.”  The challenge will be to structure the blockchain and draft the accompanying legal documentation in a manner that preserves the parties’ rights and property interests under the UCC.  It appears that, properly designed, a blockchain system can be accommodated in existing UCC provisions governing bills of lading.

Benefits of Blockchain Being Bills of Lading

If blockchain transactions are bills of lading under the UCC, the benefits to transacting parties could be many.  A classification under the UCC would provide clear legal answers regarding how to receive a perfected security interest in the bill of lading (and the underlying assets covered thereby).  We believe that the Model Blockchain bill of lading could be negotiable or non-negotiable, if properly designed.  There are well-understood risks of holding or lending against negotiable or non-negotiable instruments, and corresponding well-developed business practices in the trade and trade finance markets.  For example, the UCC contains various rules on the rights of competing claimants (whether they are direct owners, transferees or secured parties) claiming an interest to a document or the underlying goods.  To the extent that a blockchain transaction fits into an existing paradigm, the legal benefits and risks to transacting parties and creditors will be embedded in, and consistent with, existing frameworks and business considerations, thereby significantly reducing friction when migrating to an electronic blockchain system.

The use of blockchain in lieu of bills of lading remains largely hypothetical at this time, but offers real benefits to market participants (e.g., cost-savings, reduction in fraud, etc.) and appears attainable from a legal perspective. Indeed, it may very well become the industry standard sooner rather than later.

1   See, e.g., “What’s cooking in the blockchain kitchen?” (2017), https://www.ing.com/Newsroom/All-news/Whats-cooking-in-the-blockchain-ki… and Denis Balibouse, Mercuria Introduces Blockchain to Oil Trade with ING, SocGen, Reuters, Jan. 19, 2017,http://www.reuters.com/article/us-davos-meeting-mercuria-idUSKBN1531DJ.

2   For examples of recent endeavors, see Blockchain: A Better Way to Track Pork Chops, Bonds, Bad Peanut Butter?, N.Y. Times,https://www.nytimes.com/2017/03/04/business/dealbook/blockchain-ibm-bitc….

3   Bitcoins used for such purposes are called “colored coins.”  Nicolas Dorier, Programming The Blockchain in C# 95,https://www.gitbook.com/download/pdf/book/programmingblockchain/programm….

4   Unless otherwise noted, this article generally refers to the Uniform Commercial Code as in effect in New York.

This post was contributed by Martin Horowitz,Stephen M. Johnson Christopher M. McDermott and Jeffrey Nagle of Cadwalader, Wickersham & Taft LLP.
Read more legal analysis at the National Law Review.

The Ninth Circuit Asks the California Supreme Court to Weigh in on Bag Checks

On August 16, 2017, the Ninth Circuit Court of Appeals issued an order certifying a question regarding an important wage and hour issue to the California Supreme Court: Is time spent on an employer’s premises waiting for and undergoing required exit searches of bags or packages voluntarily brought to work for purely personal convenience by employees compensable as “hours worked” under California law?

The question arose in Frlekin v. Apple, Inc., an appeal in a wage and hour class action brought against Apple, Inc., by current and former nonexempt California retail store employees. In the suit, the plaintiffs sought compensation for time that they spent waiting for and undergoing exit searches whenever they left Apple’s retail store locations, pursuant to the company’s Employee Package and Bag Searches policy. The at-issue policy, which is similar to ones in place at many other large retailers, required that employees undergo unpaid, manager-performed bag/package checks before leaving the stores—at breaks or at the end of their shifts.

In July 2015, a district court certified the case as a class action. However, in November 2015, the district court granted Apple’s motion for summary judgment and denied the plaintiffs’ motion for summary judgment and ruled that time spent by class members waiting for and undergoing exit-related bag searches pursuant to Apple’s policy was not compensable as “hours worked” under California law because such time was neither “subject to the control” of the employer nor time during which the class members were “suffered or permitted” to work.

On appeal, the plaintiffs argued that employees are under the control of the employer while waiting for and undergoing the bag checks because they are required whenever entering or leaving the premises. Apple countered that the time is not compensable because employees are not required to bring bags to work, and may avoid the searches altogether by not bringing a bag or package to the workplace. In its order certifying the issue for the California Supreme Court, the Ninth Circuit noted that Apple’s position “finds strong support” in the seminal California Supreme Court decision Morillion v. Royal Packing Co., 22 Cal. 4th 575 (2000), in which the court held that time spent by employees using employer-mandated transportation to get to a worksite was compensable, while noting that time spent on “optional free transportation” would not be compensable. However, the Ninth Circuit expressed questions about whether differences in context—i.e., employer-provided transport to and from the workplace versus searches at the worksite—rendered Morillion distinguishable.

Although the U.S. Supreme Court previously determined that similar bag checks were not compensable in Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513 (2014), the California Supreme Court has not addressed the compensability of bag checks under California’s wage and hour laws, which involve a somewhat different definition of compensable work time. As the Ninth Circuit noted in its order, the consequences of any interpretation of California law with respect to bag searches “will have significant legal, economic, and practical consequences for employers and employees” throughout California and will materially affect the outcome of many pending lawsuits. For the time being, employers should consult with qualified employment counsel to mitigate risk while we wait for the California Supreme Court to weigh in.

This post was written by Philippe A. Lebel of  Drinker Biddle & Reath LLP.
Read more on litigation of wage and hour issues at the National Law Review.

Potential for more Trucking Accidents in California if New Federal Law Passes

A provision that is included in pending legislation in the U.S. House of Representatives may result in fewer truck drivers in California taking needed rest breaks while they are working. The bill would apply to truck drivers who drive into California from other states while exempting them from California’s mandatory rest break requirements. If this bill passes, truck drivers may be more fatigued and cause more accidents in both California and in the rest of the U.S.

The proposed law

A provision that is included in a House appropriations bill would exempt interstate truck drivers who drive into California from following the strict rest and meal break regulations in the state. Under California law, all workers, including truck drivers, must take one 30-minute meal break every five hours and one 10-minute rest break every four hours of work. Some other states, including Kentucky and Colorado, have similar rest and meal break laws on the books. Federal law only requires that truck drivers take one 30-minute break during the first eight hours of driving. Officials in California are concerned that reducing the amount of time that drivers spend resting may result in increased injury and accident rates in the state.

According to the Truck Safety Coalition, the legislators are attempting to preempt state labor laws that mandate additional meal and rest breaks beyond those that are required under federal law. While the law would apply to interstate drivers who drive into the state, some experts are also concerned that drivers who only drive within the state but who work for interstate trucking companies may fall into a legal loophole. They believe that their companies would likely pressure the drivers to only take the minimally required breaks under federal law instead of following the state’s requirements. The provision was introduced by two California Republicans, including Rep. David Valadao and Rep. Jeff Denham. Denham has received more than $60,000 in contributions to his campaigns from trucking organizations.

Drowsy driving truck accident statistics

In California, 15,000 large truck crashes happened in 2016. The California Highway Patrol reports that 8,989 of those collisions happened in Los Angeles. Nationally, the Federal Motor Carrier Safety Administration reports that 87,000 injury crashes happened in 2015, and 4,311 trucks and buses were involved in fatal accidents. The FMCSA reports that 55 fatal truck accidents in 2015 were caused by drowsy or fatigued truck drivers and another 71 were caused by driver inattention with unknown causes.

If the proposed law passes in the House and Senate and is signed into law by Trump, many truck drivers may not have to take the rest breaks that they currently have to take. Truck drivers drive for exhaustingly long shifts, and not being able to pull off of the road more frequently may lead them to become exhausted. In Dec. 2016, the AAA Foundation for Traffic Safety found that the crash risk for drivers spikes for every hour of sleep that they lose. Truck drivers who do not get sufficient sleep and who are also not able to take enough rest breaks may have greatly increased risks. For all drivers, AAA found that the risk of accidents doubles for people who get between five and six hours of sleep each night. When they only get four to five hours of sleep, their risks are four times higher of crash involvement than people who are more rested.

Pressures on truck drivers

Truck drivers report that they are under tremendous pressure by their companies to get their loads delivered on time, according to ABC News. When drivers are pressured to make their deliveries under tight deadlines, they may end up driving while they are fatigued. This pressure may compound the potential problems of having fewer rest breaks under the proposed federal law. If that law passes, it is likely that all interstate companies will force their workers to only follow the federal rules rather than pulling off the road more frequently or whenever they feel tired.

Drowsy driving can have serious or even fatal consequences for drivers and those who are traveling on the roads around them. Enacting federal legislation to preempt California’s meal and rest break requirements could lead to many more injuries and deaths in the state each year. Californians may want to lobby their representatives and senators about this provision in order to protect the general safety of everyone in the state.

This post was written by Steven M. Sweat.
For more legal analysis go to the National Law Review.

The Consequences of Hate Speech in the Aftermath of Charlottesville: An Employer’s Guide to Handling Rally-Attending Employees

In the aftermath of the events in Charlottesville, Virginia, over the weekend, a Twitter account with the handle @YesYoureRacist began soliciting the assistance of the general public to identify rally attendees based on photographs. “If you recognize any of the Nazis marching in #Charlottesville, send me their names/profiles and I’ll make them famous,” the Twitter-detective tweeted. Not surprisingly, many rally attendees were quickly identified, along with their educational institutions and/or places of employment. For employers this raises an interesting question: “Does my employee who participates in a white supremacist/neo-Nazi rally enjoy any job protections from said participation?” It depends.

In the days following the events in Charlottesville, we have already seen one rally participant resign his employment; three rally participants have been terminated by their respective employers; one university has publicly condemned white supremacy but informed the public they would not expel participating students; one family has publicly disavowed their son; two web-service providers removed a neo-Nazi-themed website from its servers; one Pennsylvania firefighter is under investigation for a distasteful Facebook post directed at an African-American colleague; and two police officers, one in Massachusetts and one in Kentucky, are under scrutiny for making Facebook posts mocking counter-protesters who were run down by a motor vehicle during the rally. In today’s world of mass consumerism, and with the public pressures of social media, this type of public shaming and influence is likely here to stay.

Although public-sector workers generally cannot be terminated for their exercise of speech, many union contracts require “just cause” to terminate, and some employees have employment contracts which control grounds for termination, federal law does not offer any protections for employee hate speech in the private sector, except in limited circumstances discussed later where the employee may otherwise be engaging in protected activity. Thus, for private sector employers not subject to off-duty conduct state law protections, it is not per se illegal to fire workers if what they choose to do or say in their free time reflects poorly on your business.

Employers and employees alike are probably asking: “But what about the Constitutional right to free speech?” The First and Fourteenth Amendments offer little protection for individuals who engage in hate speech and are fired by their private employer. Although “hate speech” in and of itself may be protected (except for fighting words, or true threats of illegal conduct or incitement), a private employer is equally protected when it “speaks” by terminating its employee. Private-sector employers do not have to allow employees to voice beliefs they or other workers may find offensive. While employers in the public sector need to proceed with caution, where a worker attends and participates in something as extreme as a white supremacist/Neo-Nazi rally, the employee will generally lose the protection of the Constitution. For instance, in Lawrenz v. James, the Eleventh Circuit affirmed a correctional institution’s interest in the efficient operation of a correctional facility outweighed a public-sector correctional officer’s First Amendment right to wear, off-duty, a T-shirt adorned with a swastika and the words “White Power.”

Employers must also consider whether the National Labor Relations Act (NLRA) offers any protection to both union and non-union employees engaged in this or similar off-duty conduct. While the NLRA’s primary concern is unionized workers, Section 7 also protects nonunion workers when they engage in “concerted activities for the purpose of . . . mutual aid or protection.” As of late, the National Labor Relations Board has taken an expansive view of Section 7, recently commenting that a picketing worker who made racist comments, with no overt gestures, directed towards a group of black replacement workers was protected. The Board reasoned that one of the necessary conditions of picketing is confrontation, and that impulsive behavior on the picket line is expected, particularly when it is directed against non-striking employees. In affirming the Board’s decision in Cooper Tire & Rubber Co. v National Labor Relations Board, the Eighth Circuit noted the picketing employee’s statements were not violent in character, did not contain overt or implied threats, and were not accompanied by threatening behavior or intimidating actions toward the replacement workers. The speech was protected because it was non-disruptive and occurred while the employee was engaging in protected activity (picketing). Here, it would be difficult for a Charlottesville rally participant to argue that his or her behavior under the circumstances was non-disruptive, non-threatening and/or not intimidating.

To be certain, private employers have a right to hold employees accountable for their viewpoints and to make employment decisions based on those actions, particularly where employers have a good faith belief that an employee’s viewpoints or actions may create a hostile work environment for other employees. However, as with any termination, employers should proceed with caution. Employers should not blindly trust a Twitter-verse investigation and should instead conduct their own investigation before making any employment-related decisions. Moreover, if you are a public sector employer or operate in a state subject to off-duty conduct statutes or one that does not follow the standard at-will employment doctrine, it is imperative you consult with legal counsel before proceeding with discipline or other employment-related decisions. Last, employers must not forget that if the to-be-disciplined employee also falls into a protected class, you should remain cognizant of the potential exposure with respect to a separate or inter-related discrimination claim.

Now may be as good of time as any to re-visit sensitivity and workplace harassment training.

This post was written by Janay M. Stevens of Dinsmore & Shohl LLP.
Read more employment law at the National Law Review.

Brexit Poses Issues For Airports, Airlines

The United Kingdom’s split from the European Union could leave the nation and United States without a trade agreement to manage the aviation industry. The aviation industry currently operates between the two nations under the Open Skies agreement signed by the U.S. and the EU in 2007. However, the U.K. will no longer be covered under the agreement once it leaves the bloc and, while it is still an EU member, cannot negotiate a new agreement either.

Open Skies agreements are bilateral air service agreements (ASAs) the U.S. government negotiates with other countries to provide rights for airlines to offer international passenger and cargo services. Agreements cover a number of significant matters including rights to fly over and land in territories, regulatory requirements, competition, commercial opportunities, customs and duties, and landing charges.

The situation is creating uncertainty and legal challenges in one of the most important components of international trade. Forty percent of the EU’s air traffic to the U.S. departs from U.K. airports and nearly 48,000 flights left the U.S. bound for the U.K. in 2016 alone. Commercial arrangements in the aviation industry including for airlines, air freight companies, airports and all related businesses depend on the Open Skies agreements as a basis for their contractual arrangements. Some U.S. airlines are already seeking to renegotiate deals with U.K. airports to ensure that break clauses and other mechanisms are inserted to deal with any uncertainty following Brexit, which under Article 50 has a deadline of March 30, 2019. Post-Brexit flight bookings may also need some form of provision to deal with contractual rights to hedge against major changes in the event that the Open Skies agreement is terminated for the U.K.

Michael O’Leary, CEO of Ryanair, Europe’s largest airline, told reporters on Aug. 2 that without some understanding of what a future agreement will look like airlines won’t be able to plan their 2019 flight schedules.

“There is going to be a serious disruption unless the British government can negotiate an agreement by around this time next year,” Ryanair said.

In late July, Airlines for America, the nation’s largest aviation trade group, issued a formal statement calling for the airline industry to be dealt with immediately and separately from Brexit negotiations. On Aug. 1, Reuters reported that British Transport Secretary Chris Grayling met with White House and airline officials to assure them that an agreement would be in place when the U.K. exits the EU. The Federal Aviation Administration’s chief Michael Huerta has also recently explained the seriousness of the U.K.’s situation with regards to aviation safety. Along with the other EU member states, the U.K. is currently part of the European Aviation Safety Agency (EASA), which is responsible for all aspects of civil aviation safety in the EU. Speaking at the UK’s Aviation Club, Huerta pointed out that the U.K. currently benefits from the being part of EASA and that when it leaves the EU it will need to be replaced or there would be the very real possibility of an “interruption of service.”

Faced with uncertainty of legal rights and concerns about ongoing aviation safety regulation, it is important that U.S. airlines as well as U.S. logistics and freight companies monitor the situation and plan for potential disruption. Some comfort can be taken from British Government assurances that open skies agreements and regulations will be in place when the U.K. exits the EU, however, individual commercial agreements should be reviewed to minimize risk of disruption. For instance, U.S. airlines have agreements with U.K. airports for a range of services including landing rights and leases for office outlets. All these agreements may need to be reviewed sooner rather than later so that both parties have contingencies in place to avoid any disruption as much as possible.

This post was written by G. Thomas Lee and David B. Hamilton of Womble Carlyle Sandridge & Rice, PLLC.
Get more Brexit Analysis at the National Law Review.

High Time for Massachusetts Employers to Consider a Marijuana Use Policy

All employers should maintain an employee handbook or similar policy statement that clearly sets out the employer’s position on drug and alcohol use. While federal laws relating to marijuana possession and use have not changed, many states have revised their statutes to legalize, decriminalize, or otherwise permit marijuana possession and use. This has caused some confusion for employers, who must balance the conflicting state and federal rules.

Over thirty states have enacted legislation allowing marijuana use in certain situations. In some states (California and Massachusetts, for example), medical and recreational use is permitted.  In many other states, such as Connecticut and Rhode Island, only medical use is permitted.  A number of states have also adopted legislation that specifically protects marijuana users from termination from employment based solely on a positive test for marijuana.

Massachusetts does not have such a statute. However, the Massachusetts Supreme Judicial Court recently issued a ruling that greatly complicates the issue of how to deal with an employee who is using marijuana. In Barbuto vs. Advantage Sales and Marketing (July 17, 2017), the SJC ruled that an employee who had been terminated as a result of a positive marijuana test could bring a claim for handicap discrimination under the Massachusetts anti-discrimination statute.  In Barbuto, the plaintiff was an employee of the defendant, who had a valid prescription for marijuana to help in treating Crohn’s disease.  After the employee was terminated because of a positive marijuana test, she brought a claim against the employer alleging, among other counts, a failure to provide a reasonable accommodation under the Massachusetts anti-discrimination statute.  The trial court dismissed all of the employee’s claims.  On appeal, the SJC upheld the trial court’s dismissal of most of the claims, but held that the employee could bring a claim under the anti-discrimination statute for disability discrimination and a failure to accommodate.  The SJC then reversed the dismissal of that count and sent the matter back to the trial court.

The SJC was careful to point out that employers could limit or defeat such claims by showing that allowing marijuana use would cause an undue hardship on an employer’s business, such as where the permitted use would conflict with other requirements like the Federal Drug Free Workplace Act. The SJC also clearly stated that Massachusetts law does not require any employer to permit on-site marijuana use as an employee accommodation. Even with those limitations, however, the Barbuto ruling does create some landmines for employers.  Massachusetts employers should become very familiar with the marijuana laws applicable in all states in which they have employees, and should enact employment policies consistent with those laws (which may differ significantly from state to state).  In addition, employers should consider and adopt (and consistently apply) policies that address how a positive test is handled (including addressing any reasonable accommodation issues).  For now, in Massachusetts, an employer will need to show how accommodating an employee’s medically prescribed marijuana use creates an undue hardship on the employer, and employers wishing to prohibit all marijuana use will need to be able to show this.

This post was written byMark J. Tarallo of Murtha Cullina.

Read more employment law news at the National Law Review.

Troll Hunting: Practical Strategies for Businesses to Combat Anonymous Online Trolls

No matter the business you operate, modern commerce increasingly takes place online, rarely putting the consumer and your business face-to-face. A recent study revealed that approximately 80% of American consumers buy products online, and 74% of consumers think it is extremely or somewhat important to read online reviews before making a purchasing decision.[1]  The average consumer reviews three online sources for information before soliciting a local business, typically: a search engine, the business’s website, and a website containing reviews or testimonials.[2]  Small and local businesses are not immune to the internet’s influence, as nearly 40% of consumers seek out online testimonials, ratings, or reviews to evaluate when considering whether to engage a local business for products or services.[3]  In fact, consumers cite negative online ratings and reviews as the second greatest reason not to consider a local business for products or services, behind only high prices.[4]  

Because consumers consistently turn to online resources to determine whether to do business with you, managing your online reputation is an essential task. You must actively control information about your products, address negative reviews, optimize search engines, and improve your customers’ online experience. In fact, many companies employ full time personnel solely to manage their social media presence.

But monitoring your online reputation becomes even more critical when an anonymous user (aka a “troll”) begins posting harmful or false information. The danger lies in the very nature of the internet, as “any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox.”[5]  When that voice spreads false information, interferes with your business, or divulges your trade secrets, what can you do to identify the anonymous user and hold them liable for the harm caused?

Understanding The First Amendment and Anonymous Online Speech

To pursue a claim against an anonymous online user, you must first understand the First Amendment protection afforded online speech. Internet speech is generally granted the same protection as traditional offline speech; that is, most types of speech on the internet are protected to some degree.[6]

The right to free speech online also includes a right to remain anonymous.[7]  Far from being hostile to such online secrecy, the courts have held that careful safeguards to protect anonymous online speech are important to preserve “the robust exchange of ideas and allows individuals to express themselves freely without fear of economic or official retaliation [or] concern about social ostracism.”[8] 

As in the traditional offline arena, some categories of speech, such as fighting words, obscenities, and false statements, are not protected by the First Amendment.[9]  Thus, when trolls exploit the anonymous nature of the internet to post false or damaging information about you, they often exceed the First Amendment’s protections for anonymous online speech. For example, anonymous online users may step beyond the boundaries of protected speech by:

• Creating an email account to distribute your CEO’s sensitive personal emails to senior management.[10]

• Creating online accounts to conduct a smear campaign against you with the objective of inducing employees to quit.[11]

• Posting reviews about working for you that disclose confidential or trade secret information.[12]

• Creating a website using your name to complain about your business practices and post negative reviews.[13]

• Posting false reviews of you online by posing as a former customer.[14]

If not for the use of an anonymous online persona, each of these actions could be addressed by filing a lawsuit against the troll. However, anonymity adds a layer of complication as you must either first find a way to unmask the troll’s identity or stop the harmful conduct by some other means.

Strategies to Address Harmful Online Comments Short of Litigation

Before filing a lawsuit to unmask your troll, first consider whether less costly means might stop the conduct or remove the harmful comments. This approach typically depends on the voluntary compliance of companies hosting the content, and thus is not guaranteed to succeed. However, the low cost of this initial step makes it worth considering. Further, pursuing these strategies, whether successful or not, may cause the troll to stop harming you, or to remove the content voluntarily, thereby accomplishing the end goal.

One alternative to litigation is to determine whether the online statements violate the online service provider’s “Terms of Service.” For example, Facebook’s® Terms of Service prohibit users from posting content that “infringes or violates someone else’s rights or otherwise violates the law” and authorizes Facebook to “remove any content or information” posted on Facebook that “violates this Statement or our policies.”[15]  Twitter® also requires users to ensure that posts comply “with applicable laws, rules, and regulations” and permits Twitter to remove “any Content.”[16]  Large online service providers typically offer reporting platforms where you can report a violation of the terms of service and ask to have the false or harmful content removed.[17] Thus, where a post or comment violates the terms of service, a letter to the internet service provider bringing the issue to its attention may be all that’s needed to get the offending content removed.

Another option is to request that search engines, such as Google® or Bing®, “de-index” the page on which the comments appear. “De-indexing” is a request that the search engine voluntarily remove a website from its index, thereby ensuring it will not appear in response to a search about you. Most search engines retain the right to remove offensive content. For example Google’s ® Terms of Service state that Google “may review content to determine whether it is illegal or violates our policies, and . . . may remove or refuse to display content that we reasonably believe violates our policies or the law.”[18]  The result is that, while the website containing the false statement still exists, it can’t be accessed in response to a search. The effectiveness of this step depends on whether the content clearly violates the applicable terms of service or is blatantly unlawful, and a search engine may require a court order finding the content to be unlawful before it will agree to de-index the website.

A final alternative is to address the comments from a public relations perspective. You can choose to simply engage the troll in the online forum itself, to address the falsity of the comments or steer the

discussion in a more beneficial direction. However, this approach carries significant risk that your comments may be used against you, or may even incite a more passionate, negative response. Thus, this approach should be reserved for unique factual situations that justify a public relations response instead of a legal one.

Identifying the Anonymous Online User

If you cannot stop the harmful online comments through one of the strategies above, you should consider filing a lawsuit to identify the troll and assert the appropriate claims against them. First, however, you need to analyze the conduct and determine whether you have a legal claim against the anonymous user. If so, you can file a lawsuit against the troll and attempt to uncover his or her identity.

Step One: Determine Whether the Conduct is Actionable

The types of claims available to combat online misconduct are generally the same as those available in traditional offline situations.

The most common claim pursued against trolls is a claim for defamation. When a person publishes false, harmful statements of fact about your business ethics or financial integrity, they are likely liable for defamation.[19]  Libel—defamation in writing—consists of publishing a false written statement, either deliberately or with at least a negligent disregard for the truth.[20] 

In evaluating whether you have a claim for defamation, you must candidly consider whether there is any truth to the comments, as truth is an absolute defense.[21]  Likewise, opinions are not actionable. So, if the statements are arguably just opinion, as opposed to a statement of fact (or an opinion that could reasonably be interpreted as stating facts), the anonymous speaker will not be liable.[22]  Finally, you must evaluate whether you will be deemed a “public figure,” in full or in a limited capacity.[23]  If you are a public figure, whether limited or not, you will be required to prove that the speaker acted with “reckless disregard of the truth.” Because this is a higher standard than negligence, there is a greater likelihood that the troll will not ultimately be held liable for defamation.

In addition to defamation, there are a number of other claims that you may be able to pursue against your troll:

• If the user is directing its harmful comments at a vendor, business partner, or potential customer, the user may be liable to you for tortious interference with a contract or a business expectancy. To succeed, you must have a valid contract or business expectancy; the anonymous user must both know about it and interfere with it, so as to cause its breach or termination; and have no legal justification for doing so.[24]

• If the user publishes false information about your products or services, the user may be liable for trade libel or business/product disparagement. Each of these claims has similar elements, requiring proof that the anonymous user posted a false statement concerning your products or services to dissuade a potential customer from doing business with you.[25] 

• If the user is a competitor, and the comments contain false or misleading advertisements about your products or services, the user may also be liable for unfair competition under the Lanham Act.[26]  

• If the user posts information containing your trade secrets, the user may be liable under state or federal trade secret laws.[27]

• If the user is a former employee, or had a contractual relationship with you, then the online conduct may violate provisions of that contract, such as nondisclosure or non-compete provisions.

This list is not exhaustive and there may be other potential claims to assert against an anonymous online user.

Step Two: File An Anonymous Lawsuit to Unmask the Troll

Once you identify a viable claim or claims against the anonymous online user, the next step is to file a lawsuit to discover the troll’s identity.

Such a lawsuit is typically filed against an anonymous defendant—John Doe for example—and a subpoena is then issued to the service provider or to the website hosting the content requiring it to identify the user. The service provider or website will likely object, and you will need to ask the Court for an order compelling disclosure of the user’s identity.

There is no universal standard governing when a court will order the disclosure of an anonymous user’s identity. However, most courts apply one of two generally-accepted tests, both of which require a significant showing early in the case that you are likely to succeed on your claims.

The less stringent test requires that you allege facts that—assumed to be true—demonstrate that the anonymous user committed an act giving rise to civil liability.[28]   Because the Court is looking only at whether you have sufficiently alleged a valid claim, your initial complaint is the operative document that the court will consider. You must also demonstrate to the Court’s satisfaction that (1) you have identified the anonymous user and the user is subject to personal jurisdiction; (2) you have made a good faith effort to locate and identify the anonymous user; and (3) the discovery sought is sufficiently limited to identify the appropriate user or users.[29]  This test, or some variation of the test, is used in some Federal Courts—typically in cases involving less protected forms of speech, like commercial speech—and state courts in Wisconsin, and Illinois.[30]

Most jurisdictions apply the second, more stringent test, which requires you to present facts, in the form of admissible evidence or sworn testimony, establishing that you can prove each element of your claim.[31]  This test requires you to provide more than just the pleadings, typically in the form of a statement of facts with supporting documents and testimony. Most states employing this test also require some further steps as well, such as proof that you attempted to notify the anonymous user of the pending proceeding[32]  or satisfaction of an additional balancing test to justify unmasking the troll.[33]  Federal Courts, and many state courts—including Arizona, Kentucky, Michigan, New York, Pennsylvania, Texas, California, Maryland, New Hampshire, and the District of Columbia—have adopted some version of this more stringent test.[34]

If it is not obvious from the nature of the statements that they are actionable, some courts may also require an evidentiary showing that you can prove a valid claim before they will order the troll’s identity disclosed.[35] 

Thus, if you file a lawsuit to identify the anonymous user, you must be prepared to present the facts that support your claim much earlier than in traditional litigation. Since most states apply the more stringent “evidentiary” test, the best practice is to prepare to satisfy that test, even if the less stringent test might be applied.

The factual evidence necessary to compel disclosure of an anonymous user’s identity will likely include, at a minimum: (1) copies of the offending posts; (2) sufficient evidence to demonstrate the posts are false, unlawful, or violate the terms of an agreement; (3) sufficient evidence to show that the comments are directed at you, if necessary; and (4) evidence demonstrating that you have suffered damage as a result of the comments. You should be careful to save copies of the offending posts before alerting the anonymous user that action is being taken, in order to guard against any attempt to edit, delete, or restrict access to the comments.

Step Three: Sue The Troll!

Once you have an order compelling disclosure of the anonymous user’s identity, you can serve that order on the service provider or website and expect a response. However, the response may not always identify the user, but may only give you the user’s IP address or other electronic information. You may need to issue additional subpoenas to service providers in order to identify the user of the IP address and ultimately discover the anonymous user’s identity.

Despite having an order in hand compelling disclosure of the anonymous user’s identity, you may still face obstacles from the service provider or website. Typically, large companies that host comments online resist disclosure of their users’ personal information for as long as possible. Thus, they may raise objections to disclosure, justified or not, ranging from invocation of the Stored Communications Act to the Video Privacy Protection Act. But, with the order in hand, you should be able to dispose of these objections through letter-writing, involving the court only if necessary.

Once you know the identity of the anonymous user, you can now amend the lawsuit to substitute the appropriate person for “John Doe.” With an actual defendant named, you can then begin the lawsuit in earnest to hold the no-longer-anonymous user liable for trolling online.

Conclusion

The prospect of trying to identify an anonymous online user can be daunting. But, armed with an understanding of the First Amendment and the applicable procedure, you can readily evaluate whether an anonymous user has engaged in unlawful conduct and whether you can successfully hunt down the troll to hold him or her liable. Good hunting!

References:

[1] Pew Research Center, December, 2016, “Online Shopping and E-Commerce.”

[2] YP Marketing Solutions, 2016, “The Why Before the Buy.”

[3] Id.

[4] Id.

[5] Reno v. ACLU, 521 U.S. 844, 897, 117 S. Ct. 2329, 2344 (1997).

[6] In re Anonymous Online Speakers, 661 F.3d 1168, 1173 (9th Cir. 2011) (citing Meyer v. Grant, 486 U.S. 414, 422, 425, 108 S. Ct. 1886, 100 L. Ed. 2d 425 (1988)).

[7] McIntyre v. Ohio Elec. Comm’n, 514 U.S. 334, 342, 115 S. Ct. 1511, 1516 (1995) (“[A]n author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.”); Anonymous Online Speakers, 661 F.3d at 1173 (“Although the Internet is the latest platform for anonymous speech, online speech stands on the same footing as other speech—there is “no basis for qualifying the level of First Amendment scrutiny that should be applied” to online speech.”); Doe v. Reed, 561 U.S. 186, 218, n.4, 130 S. Ct. 2811, 2831 (2010) (recognizing that the freedom of speech “can be burdened by a law that exposes a speaker to harassment, changes the content of his speech, or prejudices others against his message”)

[8] Anonymous Online Speakers, 661 F.3d at 1173.

[9] Chaplinsky v. N.H., 315 U.S. 568, 571-72, 62 S. Ct. 766, 769 (1942).

[10] Mobilisa, Inc. v. Doe, 217 Ariz. 103, 106-7, ¶¶ 2-9, 170 P.3d 712, 715-16 (Ct. App. 2007).

[11] Anonymous Online Speakers, 661 F.3d at 1173.

[12] Glassdoor, Inc. v. Superior Court, 9 Cal. App. 5th 623, 626-27, 215 Cal. Rptr. 3d 395, 399-400 (Cal. App. 6th Dist. 2017).

[13] Salehoo Group, Ltd. v. ABC Co., 722 F. Supp. 2d 1210, 1212-13 (W.D. Wash. 2010)

[14] Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 62 Va. App. 678, 686-88, 752 S.E.2d 554, 557-58 (Va. Ct. App. 2014).

[15] https://www.facebook.com/terms.

[16] https://twitter.com/tos?lang=en.

[17] https://www.facebook.com/help/contact/191381691012854; https://support.twitter.com/articles/15789.

[18] https://www.google.com/intl/en-GB/policies/terms/.

[19] Seitz v. Rheem Mfg. Co., 544 F. Supp. 2d 901, 907 (D. Ariz. 2008) (“Although a corporation may maintain an action for libel, it has no personal reputation and may be libeled only by imputation about its financial soundness or business ethics.”).

[20] Desert Palm Surgical Group, P.L.C. v. Petta, 236 Ariz. 568, 579, ¶ 26, 343 P.3d 438, 449 (Ct. App. 2015).

[21] Read v. Phoenix Newspapers, 169 Ariz. 353, 355, 819 P.2d 939, 941 (1991) (“In a civil action for libel, the truth of the contents of the allegedly libelous statement is a complete defense.”)

[22] Yetman v. English, 168 Ariz. 71, 76, 811 P.2d 323, 328 (1991) (“The key inquiry is whether the challenged expression, however labeled by defendant, would reasonably appear to state or imply assertions of objective fact.”)

[23] Makaeff v. Trump Univ., LLC, 715 F.3d 254, 270 (9th Cir. 2013) (recognizing that a limited liability company can be an all-purpose public figure or a limited purpose public figure)

[24] Dube v. Likins, 216 Ariz. 406, 411, ¶ 8, 167 P.3d 93, 98 (Ct. App. June 28, 2007) (citing Miller v. Hehlen, 209 Ariz. 462, 471, ¶ 32, 104 P.3d 193, 202 (App. 2005)).

[25] W. Tech. v. Sverdrup & Parcel, Inc., 154 Ariz. 1, 4 (Ct. App. 1986)

[26] POM Wonderful LLC v. Coca-Cola Co., 134 S. Ct. 2228, 2234 (2014) (“The Lanham Act creates a cause of action for unfair competition through misleading advertising or labeling.”)

[27] 18 U.S.C. § 1836; A.R.S. § 44-401, et seq.

[28] Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999); see also Anonymous Online Speakers, 661 F.3d at 1177 (recognizing that “[t]he lowest bar that courts have used is the motion to dismiss or good faith standard.”).

[29] Id. at 578-80.

[30] Anonymous Online Speakers, 661 F.3d at 1176-77; Salehoo, 722 F. Supp. 2d at 1216 (finding that “the prima facie standard is appropriate in order to guarantee that the plaintiff has brought viable claims in connection with his or her attempt to unmask the anonymous defendant.”); Lassa v. Rongstad, 294 Wis. 2d 187, 215 (Wis. 2006) (applying the motion to dismiss standard before compelling disclosure of anonymous identity); Hadley v. Doe, 2015 IL 118000, ¶ 27 (Ill. 2015).

[31] John Doe No. 1 v. Cahill, 884 A.2d 451, 460 (Del. 2005)

[32] Cahill, 884 A.2d at 460; Mobilisa, 217 Ariz. at 110, ¶ 22; Solers, Inc. v. Doe, 977 A.2d 941, 954 (D.C. 2009); Doe v. Coleman, 497 S.W.3d 740, 747 (Ky. 2016); Ghanam v. Does, 303 Mich. App. 522, 541-42 (2014); Ottinger v. Non-Party The Journal News, 2008 N.Y. Misc. LEXIS 4579, **4-7 (N.Y. Sup. Ct. 2008); Pilchesky v. Gatelli, 12 A.3d 430, 442 (Pa. Super. Ct. 2011); In re Does 1-10, 242 S.W.3d 805, 821-23 (Tex. App. Texarkana 2007); Krinsky v. Doe 6, 159 Cal. App. 4th 1154, 1167-73 (2008); Indep. Newspapers, Inc. v. Brodie, 966 A.2d 432, 457-58 (Md. 2009); Mortgage Specialists v. Implode-Explode Heavy Indus., 999 A.2d 184, 193, ¶ 13 (N.H. 2010).

[33] Mobilisa, 217 Ariz. at 112, ¶ 28; Coleman, 497 S.W.3d at 747; Ottinger, 2008 N.Y. Misc. LEXIS at **4-7; Brodie, 966 A.2d at 457-58;Mortgage Specialists, 999 A.2d at 193, ¶ 13.

[34] Mobilisa, 217 Ariz. at 112, ¶ 28; Solers, 977 A.2d at 954; Dendrite Intern., Inc. v. Doe No. 3, 342 N.J. Super. 134, 156-58 (2001); Ghanam, 303 Mich. App. at 541-42; Ottinger, 2008 N.Y. Misc. LEXIS at **4-7; Krinsky, 159 Cal. App. 4th at 1167-73; Brodie, 966 A.2d at 457-58;Mortgage Specialists, 999 A.2d at 193, ¶ 13.

[35] Glassdoor, 9 Cal. App. 5th at 636, 215 Cal. Rptr. 3d 395, 407.

This post was written by Kevin Heaphy of   2017 Ryley Carlock & Applewhite. A Professional Association

0.44% of NFL Brains

When The New York Times reports that 110 out of 111 NFL brains (99.09%) have chronic traumatic encephalopathy (CTE), everyone pays attention. Mothers worry about their kids. Some worry about their jobs. Senate subcommittees investigate. The Times article covers Dr. Ann McKee’s recent article in the Journal of the American Medical Association, “Clinicopathological Evaluation of Chronic Traumatic Encephalopathy in Players of American Football” (JAMA. 2017;318(4):360-370) in dramatic fashion, illustrated with pathology slides of tissue samples from the brains of former football players and anecdotal information about them. Such claims are certain to be fuel for CTE litigation and cries to ban tackle football.

Let’s put this in perspective. About 25,000 men have played American professional football. So, 110 is roughly 0.44%. Even if the real number is double, the outcome remains a statistical nonentity.

In all fairness, the study points out some of its limitations; for example, “Ascertainment bias associated with participation in this brain donation program.” Inclusion was based entirely on exposure to repetitive head trauma eliminating any form of “control” group, a necessary element of any scientific study. The authors also disclose that “public awareness of a possible link” between head trauma and CTE “may have motivated” some participants. Finally, the authors acknowledge that the study is not representative of the population of all American football participants, as most play only at the youth or high school level, whereas the majority of the donors played at the professional level. The study data somewhat illustrates that point: CTE was found in none of two pre−high school participants and three of 14 high school participants (21%).

Breaking It Down

The 800-pound gorilla in this room is suicide. Suicide among former football players gets major media attention (Junior Seau and Aaron Hernandez) and has spawned a cottage industry of CTE litigation against every level of the sport from NFL down to Pop Warner. The study tries to correlate neuropathology with “clinical observations” − information drawn from “retrospective interviews” with family members of deceased donors. Observations are grouped as cognitive, behavioral or mood or both, and signs of dementia. Suicide was identified as the cause of death in 10% of the study group. “Suicidality” (ideation, attempts or completion) is identified among 33% of the study group. Some might conclude that if you play football you are 33% more likely to contemplate or attempt suicide and 10% more likely to succeed.

In fact, the rate of suicide mortality among retired NFL players is substantially lower than in the general population. An investigation performed at the National Institute for Occupational Safety and Health (NIOSH) and published in 2016 (Lehman, et al.) found that among players retired since 1987, the suicide rate is 6.1 / 100,000. Among players retired since 2005, it’s 12.5 / 100,000. Among average American men, the rate since 2014 is 20.1 / 100,000. One would conclude that since 2005, NFL players are 48% less likely to commit suicide than the general population, and since 1987, 70% less likely. The study covered those who played for five years or more.

Of note, drugs are assessed by standardized mortality ratio – the increase or decrease in mortality with respect to the general population. “If playing in the NFL (for a minimum of five seasons) were treated like taking a drug, it would reduce the standardized mortality (measured 30 years later) by half!” Samadani, Brain Injury and Football, Reality v. Perception. THSCA presentation, 2016.

Similar studies have been done at the college level where the NCAA maintains a robust database. A nine-year study published in October 2015 (Rao, et al.) observed that as against a rate of 12 / 100,000 among 18−22-year-old non-college individuals, the suicide rate among college students was 7.5 / 100,000. Among male NCAA athletes, the suicide rate was 2.25 / 100,000.

Another study dispels the notion that CTE is a path to neurological deficit. Published in Acta Neuropathol, “Histological Evidence of CTE in a Large Series of Neurodegenerative Diseases” (Ling, et al., 2015) observed that (1) CTE prevalence in people with neurodegenerative diseases (11.8%) was the same as in controls (12.8%); (2) patients with CTE died at a mean age of 81 years and “most positive cases [were] likely to be clinically asymptomatic”; and (3) CTE is found under the microscope in equal proportions of healthy, normal, asymptomatic people as it is in people with dementia and other diseases. For those worried about doing the right thing by their kids, a study published in December 2016 in Mayo Clinic Proceedings (Savica, et al., “High School Football and Risk of Neurodegeneration: A Community-Based Study”) found that among 438 football players followed for 50 years, the risk of dementia was the same as for members of the chorus, glee club or band.

Facts and Findings

Fortunately, in court science matters. The notion that football causes CTE has been rejected by at least one United States District Court, the Eastern District of Pennsylvania, and the Third Circuit Court of Appeals. See In re NFL Players Concussion Injury Litig., 307 F.R.D. 351 (EDPA, 2015), aff’d 821 F.3d 410 (3d Cir. 2016). Judge Brody’s key findings, based on current scientific knowledge and affirmed by the appellate court, negate causation: (1) the study of CTE is nascent, and the symptoms of the disease, if any, are unknown; (2) medical research has not reliably determined which events make a person more likely to develop CTE; and (3) research has not determined what symptoms individuals with CTE typically suffer from while they are alive. In re NFL Players Concussion Injury Litig., 821 F.3d at 441.

The point: Media should not lead science. The health and psychosocial benefits of athletic activity at all ages far outweigh any perceived risk. As parents, we should encourage healthy activity. As professionals, we need to peel back what the media pushes, read the literature and understand the fundamentals.

This post was written byAnthony B. Corleto of Wilson Elser Moskowitz Edelman & Dicker LLP.
For more legal analysis check out The National Law Review.

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