The National Law Forum

Introducing the New SmartExpert: Self-driving Car "Drivers"

The National Highway Traffic Safety Administration has deemed the artificial intelligence that controls Google’s self-driving car a qualified “driver” under federal regulations. So, if a computer can drive, must we have a computer testify as to whether this new “driver” was negligent? It sounds laughable: “Do you, computer, swear to tell the truth?” But, with so many new potential avenues of litigation opening up as a result of “machines at the wheel,” it made us wonder how smart the new expert will have to be?

With its heart beating in Silicon Valley and its position well-established as a proponent of computer invention and progress, it was surprising when California was the first state to suggest we need a human looking over the computer’s shoulder. That is essentially what the draft regulations from the California Department of Motor Vehicles for the regulation of self-driving vehicles proposes – that self-driving cars have a specially-licensed driver prepared to take the wheel at all times. After years spent developing and testing self-driving cars in its home town of Mountain View, California, Google may now be looking elsewhere for testing and production. The rule proposed by the California DMV would make Google’s car impossible in the state. Why? Because humans cannot drive the Google self-driving car. It has no steering wheel and no pedals. The Google car could not let a human take over the wheel. Does that thought make you pause?

It apparently didn’t give the National Highway Traffic Safety Administration any cause for concern, as they approved Google’s self-driving software, finding the artificial intelligence program could be considered a bonafide “driver” under federal regulations. In essence, Google’s driving and you are simply a passenger. If you would hesitate to get in, Google’s Chris Urmson, lead engineer on the self-driving car program explains: “We need to be careful about the assumption that having a person behind the wheel will make the technology safer.” Urmson is basically saying computers are safer than humans. When you think about the number of automobile accident-related deaths in the United States alone, he may be right. If he is right, wouldn’t artificial intelligences sophisticated enough to drive a car more safely than humans be able to learn to do other things better as well? Couldn’t they drive a forklift, perform surgery on humans, manage a billion dollar hedge fund? If that is where things are heading, who will testify as to the applicable standards of behavior for these machines? In the hedge fund example, will it be a former hedge fund manager who has years of experience handling large, bundled securities or a software developer who has years of experience programming artificial intelligence?

Who do you think will be able to testify in cases where an artificially-intelligent machine plays a role? Liability at the hands of a machine is bound to emerge. Someone will have to speak to the standard of judgment, discretion, and care applicable to machines. Maybe Google will be allowed to text while driving. Who’s to say?

Article By Annie Dike of IMS ExpertServices

Coca-Cola Bottling Of Mobile to Pay $35,000 to Settle EEOC Sex Discrimination Suit

Company Refused Job to Experienced Applicant Because of Gender, Federal Agency Charged

Coca-Cola Bottling Company of Mobile, a manufacturer, bottler and distributor of soft drink products, will pay $35,000 and furnish other significant relief to settle a sex discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

According to EEOC’s suit, Coca-Cola Bottling Company of Mobile, a subsidiary of Coca-Cola Bottling Co. Consolidated, refused to hire Martina Owes, an applicant for two vacant warehouse positions, because she is female. While Owes had the required warehouse and forklift experience, the company chose to hire less qualified men for the available positions. EEOC also charged that, by not preserving all application materials related to those positions, the company violated federal record-keeping laws.

Sex discrimination violates Title VII of the Civil Rights Act of 1964, which protects employees against discriminatory practices based on race, color, national origin, sex, and religion. EEOC filed suit in U.S. District Court for the Southern District of Alabama, Mobile Division (EEOC v. Coca-Cola Bottling Co. Consolidated et al., Case No. 1:15-cv-00486) after first attempting to reach a pre-litigation settlement through its administrative conciliation process.

The consent decree settling the suit, entered by U.S. District Judge William H. Steele, provides that Coca-Cola Bottling will pay Owes $35,000 and prohibits further discrimination. Also, the company is required, for three years, to conduct annual training of its Mobile employees on discrimination and retaliation, develop new or revised anti-discrimination policies and a written hiring process, and designate a director-level employee to coordinate its compliance with anti-discrimination laws and compliance with the decree.

“Employers are required to provide women with equal employment opportunities, and that includes jobs that traditionally have been dominated by men,” said Delner Franklin-Thomas, district director of EEOC’s Birmingham District Office, which has jurisdiction over Alabama and portions of Mississippi and Florida. “We appreciate Coca-Cola Bottling’s desire to cooperate with EEOC early in the litigation process to resolve this matter.”

EEOC Birmingham Regional Attorney C. Emanuel Smith, said, “EEOC will continue to litigate when necessary in cases involving arbitrary and unfair barriers to equal opportunity in the workplace based on sex. The law requires that female applicants be judged on their qualifications and not passed over because of their gender.”

The elimination of recruiting and hiring practices that discriminate against women, racial, ethnic and religious groups, older workers, and people with disabilities is one of six national priorities identified by EEOC’s Strategic Enforcement Plan (SEP).

EEOC’s litigation and settlement efforts were led by Senior Trial Attorney Gerald Miller and Trial Attorney Christopher Woolley of its Birmingham District Office.

EEOC enforces federal laws prohibiting employment discrimination. Further information about EEOC is available on its website at www.eeoc.gov.

You can read the original article on the EEOC’s website here.

Article By U.S. Equal Employment Opportunity Commission
© Copyright U.S. Equal Employment Opportunity Commission

OCC Releases White Paper Discussing Plans For Understanding and Evaluating Financial Technology Innovations

The Office of the Comptroller of the Currency has released a White Paper that discusses the agency’s attitudes and approaches to developments in financial technology, and to the associated innovations that the fintech industry has brought, and continues to bring, at an ever-increasing pace, to banks and others in the financial-services industry.

Fintech innovations come both from within the financial-services industry and from nonbank companies, which may want to offer their products or services as vendors to financial institutions, or, instead, partner with such institutions in offering new services to bank customers.

The White Paper enumerates eight “guiding principles” that the agency says it has formulated “to guide the development of its framework for understanding and evaluating innovative products, services, and processes that OCC-regulated banks may offer or perform.” The term “responsible innovation” occurs throughout the principles, and, indeed, throughout the White Paper.

The principles reflect the OCC’s longstanding emphasis on the importance of such matters as assuring fair access to financial services and fair treatment of customers; giving due attention to effective risk management and preserving safe and sound operations; encouraging all banks to integrate responsible innovation into their strategic planning; promoting effective outreach; and collaborating with other regulators.

Speaking at the American Banker Retail Banking Conference in Las Vegas on April 7, Comptroller of the Currency Thomas J. Curry discussed the White Paper, the agency’s development of it, and some of what the agency hopes it will achieve: “We at the Office of the Comptroller of the Currency want to support efforts by federal banks to innovate, but we also want to be sure that they do so in a responsible way that doesn’t threaten the safety of the system or the financial well-being of bank customers.” He added: “Banks engaged in responsible innovation need to strike the right balance between providing benefits to consumers and businesses with sound risk management.”

The agency says it is considering several alternative structures and methods for understanding and evaluating the new products, services, and techniques, and the related innovations available through use of fintech devices and applications, and how the regulatory and supervisory framework administered by the OCC, and the business plans of the institutions that it supervises, most effectively and efficiently can assure that the benefits of these innovations can be made available to customers, while preserving safety and soundness, and without limiting or restricting the public’s access to financial services, or putting at undue risk the protection of privacy and data security that both commercial and consumer customers of banks now demand.

“Banks of all sizes will need to ensure appropriate risk management plans are in place when considering new products, services and technologies, using models and managing third-party relationships,” Curry said in his Las Vegas speech. “The OCC’s framework will describe ways that national banks and federal savings associations identify and address risks resulting from emerging technology.”

One proposal under consideration is the creation by the OCC of a centralized office on innovation. Presently, according to the paper, “banks and nonbanks use a variety of formal and informal entry points to communicate with the OCC”—one bank that’s interested in an innovative payments process may approach its examiners, for example, while another may seek guidance by inquiring of OCC legal staff whether it would need to obtain a legal opinion before offering or using a new process, and another may “contact one of the agency’s experts on credit, compliance, payments, cybersecurity, or modeling. While providing flexibility, the current process can result in some inconsistencies and inefficiencies.”

The White Paper concludes with a series of nine questions on which the OCC requests public comment, covering such areas as what steps the OCC can take to facilitate responsible innovation by banks and thrifts, what the agency can do to help community bankers better incorporate innovation into their strategic planning processes, and what forms of outreach and information-sharing are most effective.

The paper notes that some fintech innovations have been successful in expanding the access of underserved customers to financial services. Survey data indicate that underserved communities are more likely to use mobile banking technology than “fully banked” communities. Moreover, it adds: “Current innovations in the financial industry hold great promise for increasing financial inclusion of underserved consumers, who represent more than 68 million people and spend more than $78 billion annually.”

At the same time, the paper points out, “Brick-and-mortar branches are a stabilizing force in low-income neighborhoods, and innovative technology should not be seen as a substitute for a physical presence in those communities.” The paper says that the agency may issue guidance “on its expectations related to products and services designed to address the needs of low- to moderate-income individuals and communities,” including “promoting awareness of other activities that could qualify for Community Reinvestment Act consideration.”

ARTICLE BY George A. LeMaistre, Jr. of Jones Walker LLP

Asking for Business From a Distance

Legal services are increasingly provided to companies located across the country or even across the globe from the firms that serve them; and this creates a new level of complexity when it comes to business development. Maybe you and your team flew to Dallas or Tokyo to make pitch. You think it went well, but now you need to figure out how to follow up effectively long distance. Similarly, you may want to do additional work for an existing client located a thousand miles away. Should you fly out and see her, or is reaching out by phone sufficient? Such dilemmas are common in the modern world. Here are a few factors to consider when asking for business from a distance.

Asking for business feels a lot weightier for the attorney than for the client.

An attorney may think that following up after a pitch or discussing the possibility of starting a new matter is a complex, delicate conversation and, therefore, it would be better to communicate in person. It is important to remember, however, that the conversation will probably feel very different to the attorney than to the client. A lawyer may find initiating such discussions to be stressful, like they are an evaluation of one’s expertise, worthiness, or likability. Yet, if the lawyer is doing it well, such a conversation should not be dramatic or difficult from the client’s perspective. If anything, it should be the opposite. The attorney is offering help, giving clients a chance to talk through the challenges they are facing, and hopefully bringing empathy, an outside perspective and relevant expertise, all of which is appreciated. If there is a good fit between the client’s needs and the legal services offered, the discussion naturally progresses towards a sale, regardless of whether one is on the phone or in person.

Words don’t matter as much as tone of voice.

Experience tells us that we can sense a great deal about another person’s mood and attitude simply from hearing his or her voice telephonically. Think about the last few times you spoke to customer service representatives on the phone. They generally speak from call scripts. Did you notice that different people can communicate the same message, even use the same exact wording, but you as the customer can hear it very differently depending on who is speaking? One person may seem kind and approachable, another may seem “checked out” and uncaring, while a third may seem cold but capable. Our desire to do business with a company is heavily influenced by our sense of trust and connection to the customer service person—and that is largely a matter of tone, pace, intonation and other intangible factors that we pick up on almost instantaneously when interacting with others but which we are less attuned to in ourselves.

We have all heard that only 7% of your message comes through your words, 38% from voice and vocal cues and 55% from body language. This statistic, based on Dr. Albert Mehrabian’s research, is frequently quoted out of context and applied to situations far outside the scope of the research, such as giving a speech or arguing a motion in front of a judge. Nevertheless, in situations such as business development where intent, credibility and character matter most, the tone of voice does make or break our effectiveness. The fact that we can’t rely on visual input doesn’t change this; it only makes the vocal segment of the non-verbal communication that much more important.

Your tone and other vocal cues are determined by your intention, attitude and approach.

Even if you accept the premise that clients’ impressions of, and desire to do business with, you will be heavily influenced by your voice, you still may be wondering what to do about it. Some people recommend speaking slowly, remembering to breathe, and varying pitch and pacing, all of which is good advice, as far as it goes. However, it is like a doctor addressing the symptoms rather than the underlying cause. When a lawyer speaks too fast or forgets to breathe, it is generally because he is thinking about himself, his own nervousness, or his desire to achieve a particular outcome, rather than about the client and her needs.

When a lawyer goes into a conversation genuinely focused on the client and seeking to understand her challenges, desires, and perspectives, he naturally communicates better. The intention to be helpful and collaborative generally pushes aside self-doubt and makes people more relaxed, flexible and responsive. Consequently, one of the most valuable things you can do before calling a client or potential client to ask for business is to make a deliberate choice about your intentions and how you want to approach the conversation. This creates a subtle but important shift in your demeanor and attitude, which automatically alters the tone, pitch and other vocal nonverbal signals and, in doing so, enables you to have more effective conversations, even at a distance.

Individuals’ affinity for phone conversations varies.

While some people hate the telephone, many people are just as comfortable on the phone or teleconference as they are in person. Don’t assume that your client or prospective client has the same attitude that you do. Look to the client’s behavior as a guide. Does he prefer to wait for in-person meetings, or does he like to talk through things by phone? Also, if you have any doubt, you can always ask him directly. For example, you could say, “I have an idea for how my firm may be able to help you with _______. I’m planning to visit you in July. Would you prefer to wait until then to discuss this or would you rather talk sooner?” People like having a choice, and the most effective professionals of any kind are those who understand that people are different and adapt their approach accordingly.

Most of the time, any form of asking for business is preferable to none at all.

A final factor to consider when asking for business from a distance is that while attorneys often worry about finding the right words or the right moment to follow up or initiate a conversation, this is one of the many situations where it is better to just do it. No matter how perfectly you conduct the conversation or how great your relationship, some companies will need your services and some will not. All you can do is ask. While this is no different than the situation when following up with clients at a closer proximity, I find that the distance becomes one more rationale for not having those uncomfortable conversations. Human beings tend to put off activities and discussions that feel awkward and our minds are excellent at finding excuses. Don’t turn distance into an artificial obstacle.

Article By Anna H. Rappaport of Excelleration, LLC

Improved US – Cuba Relations Create Potential FCPA Risks for US Companies Looking to do Business There

The normalization of relations between the United States and Cuba offers potential lucrative business opportunities for companies that are prepared to meet Cuba’s unique corruption risks. On December 17, 2014, President Barack Obama and Cuban President Raul Castro announced the restoration of full diplomatic relations between the United States and Cuba; an act which President Obama stated was aimed at ending “an outdated approach that for decades has failed to advance our interests” and that would instead begin to “normalize relations between our two countries.” In furtherance of that goal, on January 16, 2015, the U.S. Government eased travel restrictions between the U.S. and Cuba and, perhaps more importantly, reduced certain obstacles that prevented American companies from doing business on the island. For example, U.S. businesses will be allowed to provide financing to Cuban small businesses and sell communications devices, software, and hardware services among other things. Indeed, American companies in the aviation, telecommunications, or financial industries stand to gain a substantial foothold in a burgeoning new – and potentially lucrative – Cuban market.

Before diving in head first, however, American companies must recognize and prepare for the significant Foreign Corrupt Practices Act (“FCPA”) risks inherent in doing business in Cuba. But first, a quick refresher on the FCPA. Generally speaking, the FCPA prohibits bribing foreign officials for the purpose of obtaining or retaining business. The term “foreign official” is broadly defined and includes, among other things: (i) officers or employees of a foreign government or any department, agency, or instrumentality thereof; or (ii) anyone acting in an official capacity for or on behalf of said foreign government or any department, agency, or instrumentality thereof.

Doing business in Cuba presents a host of unique FCPA risks, three of which are particularly worth highlighting. First, while the Cuban government has taken steps to permit its citizens to open small businesses, the vast majority of Cuba’s economy remains government-owned and controlled. Former economist for the International Monetary Fund, Ernesto Hernandez-Cata, estimated that the Cuban government, directly and through state-owned businesses, accounts for more than 75% of Cuba’s total economic activity. Essentially, the state is involved in virtually all of the island’s major businesses, including services typically run by the private sector in the U.S. In other words, American companies will almost certainly deal with foreign officials when doing business in Cuba.

Second, Cuban government officials are notoriously undercompensated. On average, government officials earn between $20 and $40 per month while, in some cases, being tasked with administering Cuba’s multi-million dollar business ventures. Unsurprisingly, low wages and extensive state involvement in business matters have incentivized some Cuban officials to solicit bribes (and, occasionally, have tempted foreign companies to offer them). For example, in September 2014, Cy Tokmakjian, Claudio Vetere, and Marco Puche, executives at Tokmakjian Group, a Concord, Ontario, Canada-based company, were convicted of using bribery and other means to avoid paying taxes. They received sentences of 15, 12, and 8 years respectively as part of President Raul Castro’s crack down on graft and other forms of corruption. Tokmakjian, Vetere, and Puche may not be subject to the FCPA, but similar payments by American companies in Cuba would likely expose the companies and employees to FCPA liability.

Third, and finally, Cuba suffers from a widespread lack of transparency. The 2015 Transparency International Corruption Perceptions Index ranked Cuba 56^th out of 168 countries surveyed, tied with Ghana. American companies may find themselves in the dark with respect to Cuban regulations and procurement practices. As a result, companies may not be aware of inconsistent and/or improper application of Cuban regulations. Worse still, American companies may be unaware of the true purposes for certain payments. For example, a company may be informed that a particular payment is required to obtain a specific license but find out that the money was directed to a foreign official.

Note that the FCPA does have a knowledge requirement; however, knowledge may be demonstrated by establishing awareness of a high probability of impropriety, unless the person actually believed that there was nothing improper in that instance. See 15 U.S.C. § 78dd-1(f)(2). The “high probability” standard was intended to ensure that the FCPA’s “knowledge” requirement included instances of “conscious disregard” and “willful blindness.” H.R. Rep. No. 100-576, at 919 (1988) (citing United States v. Bright, 517 F.2d 584 (2d Cir. 1975)); see also United States v. Kozeny, No. 09-cr-4704, 2011 WL 6184494 (2d Cir. Dec. 14, 2011). Furthermore, the vast majority of FCPA cases settle before trial which means that there is little case law that speaks specifically to the FCPA’s scienter requirement. As a result, the DOJ and SEC have broad discretion to attempt to settle cases based on facts that may be out of tune with a strict interpretation of the FCPA’s scienter requirement.

At a minimum, reducing FCPA risks in any foreign country requires that companies take a few basic, but important, steps: conduct a risk assessment of the country, the industry, and the market; use the assessment to prepare a potent anti-bribery policy aimed at both prevention and remediation; implement the policy and disseminate it to all employees; adequately train employees and company agents; and modify the policy when necessary to ensure adequate protection in a changing market.

More specifically, doing business in Cuba – a market with which few American companies are deeply familiar – requires a thorough risk assessment. The quality of the analysis can mean the difference between a deficient anti-bribery policy and one that adequately shields the company from risk exposure. Accordingly, American companies should seek the advice of counsel before, during, and after the assessment. Counsel with experience in dealing with FCPA issues will be well-equipped to make sure the risk analysis is efficient, comprehensive, and targeted. This information will prove invaluable when designing an anti-bribery policy. Furthermore, experienced counsel can assist in implementing the policy, modifying the policy to ensure ongoing effectiveness, and representing the company should any FCPA-related issues arise.

Article By Philip J. Bezanson, Glen A. Kopp & Jeffery B. Vaden of Bracewell LLP

Department of State Issues May 2016 Visa Bulletin

The Department of State (DOS) has released the May 2016 Visa Bulletin with the Application Final Action Date chart for employment-based applications which reflects some modest movement for some applicants.

The second and third preference categories for China-mainland born applicants had no movement. The second and third preference categories for India move ahead a few weeks to Nov. 22, 2008, and Sept. 1, 2004. There was no movement in the third preference for all chargeability areas except those listed, and no movement for Mexico. The third preference and other workers categories for the Philippines move ahead a few months to Aug. 8, 2008.

There was no movement in the Dates for Filing chart for employment-based categories with the exception of the other workers category for China-mainland born applicants, which moved up several months to April 1, 2008.

The May 2016 Visa Bulletin states that “during the past month, there have been extremely high levels of Employment-based demand in most categories for cases filed with U.S. Citizenship and Immigration Services for adjustment of status. If this sudden and unanticipated change in the demand pattern continues, it could impact final action dates in the coming months and possibly require corrective action in some.” The DOS also notes an oversubscription of applicants from El Salvador, Guatemala, and Honduras.

As previously reported, last month prospective adjustment of status applicants have been advised to use the Application Final Action Date chart to determine their eligibility to file applications, despite previous guidance that the Dates for Filing chart could be used. Greenberg Traurig will continue to monitor the movement of Visa Bulletins and consequences on eligibility for filing.

APPLICATION FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES

DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS

Article By Kristen T. Burke of Greenberg Traurig, LLP

Friend Request Denied: Judge Asks Attorneys to Refrain from Social Media Searches of Jurors

In late March 2016, a California federal judge asked both Google, Inc. and Oracle America, Inc. to voluntarily consent to a ban against Internet and social media research on empaneled or prospective jurors until the conclusion of the trial.

The case at issue is Oracle America, Inc. v. Google, Inc., a long-standing copyright infringement suit in which Oracle claims Google’s Android platform infringed various Oracle copyrights. This “high-profile lawsuit” has been making its way through the courts since 2010. Before the voir dire commenced in the current proceedings before the Northern District of California, Judge William Alsup realized that the parties intended to “scrub” Facebook, Twitter, LinkedIn, and other social media sites to gain personal information about the potential jurors.

In response to this realization, Judge Alsup issued an order asking the parties to voluntarily refrain from searching the Internet and social media accounts for personal information about the empaneled or prospective jurors prior to the verdict. While Judge Alsup stated that it was within the discretion of the court to order a complete ban, the court stopped short of issuing an outright ban.

Despite his objections to Internet research, Judge Alsup accepted the premise that social media and Internet searches of jurors are useful to attorneys. Information pulled from these searches can help attorneys during the voir dire process. For example, attorneys can use this personal information strategically while exercising their preemptory challenges or can rely on personal information about a potential juror to support a for-cause removal. Even during the trial, ongoing searches of social media sites can shed light on whether a juror gives or receives commentary about the case.

Despite the potential benefits, however, Judge Alsup issued three reasons in support of restricting these Internet searches.

First, if jurors knew that attorneys had conducted Internet searches of them, jury members would be more likely to stray from the Court’s admonition not to conduct Internet searches about the case. Because this high-profile case has been widely discussed in the media, the court warned of an “unusually strong need” to prevent jury members from conducting Internet searches.
Second, if attorneys learn of personal information about jury members from social media websites, they may be tempted to make personal appeals during arguments and witness interrogations in an attempt to pander to a jury member’s interests. The court warned that this behavior was out of bounds.
Third, the privacy of the jury members should be protected. Judge Alsup noted that empaneled or prospective jurors are not “celebrities,” “public figures,” or “a fantasy team composed by consultants.” Because jurors are citizens willing to serve their country and bear the burden of deciding disputes, Judge Alsup emphasized that their privacy matters.

In his order, Judge Alsup referenced Formal Opinion No. 466 from the American Bar Association. This formal opinion held that it is ethical, under certain restrictions, for attorneys to conduct Internet searches on prospective jurors. The ABA determined that a “passive review” of a juror’s website or social media page (i.e., a review that does not make an “access request” and of which the juror is unaware) is not considered an ex parte communication with jurors. Judge Alsup noted, however, that just because these searches are not unethical does not mean that attorneys have an inalienable right to perform these searches.

According to Judge Alsup’s order, if the parties do not voluntarily agree to refrain from Internet and social media searches, they will have to abide by certain rules during the jury selection process. First, the attorneys will be required inform the jury pool upfront about the nature of their searches prior to jury selection. Also, once the attorneys have made this announcement, they will then have to allow the potential jurors a few minutes to adjust their social media privacy settings on their mobile devices.

In short, the judge’s order emphasized the court’s “reverential respect” for juries, asking the attorneys to refrain from performing Internet and social media searches for jurors’ personal information until the trial is over.

Article By Russell Kostelak of Proskauer Rose LLP

California Court to PGA Tour Caddies: You’ll Get Nothing and Like It!

As the full swing of the PGA season rounds the corner, and with the azaleas blooming at Augusta, the trusted confidants of golf’s premier players have already missed the cut.

Last month, the District Court for the Northern District of California dismissed a lawsuit filed against the PGA Tour by a group of 168 caddies contending that the Tour may not require them to wear shoulder-to-thigh length “bibs” during tournaments, many of which feature the name of the golfer for whom the caddie works (on the back) and the names and logos of tournament sponsors (on the front) (Hicks v. PGA Tour, Inc., 2016 WL 928728 (N.D. Cal. Feb. 9, 2016)). Among other arguments, the caddies alleged that the Tour missed the fairway and violated their “right of publicity” by using them as “human billboards” for tournament sponsors without compensation.

California, like many other states, recognizes both a statutory and a common law right of publicity. In California, to state a claim for common law misappropriation in violation of the right of publicity, a plaintiff must allege that defendant used the plaintiff’s name, likeness, or identity without plaintiff’s consent, to the defendant’s advantage, causing harm to plaintiff. The caddies argued that they had never consented to the Tour’s use of their “likeness and images” in connection with the corporate-sponsored bibs during television broadcasts of tournaments. Lawyers for the caddies estimated the value of chest-front advertising on caddie bibs at $50 million per Tour season, of which the caddies received no cut.

U.S. District Judge Vince Chhabria dismissed the caddies’ lawsuit last month with prejudice, writing that “(t)he caddies’ overall complaint about poor treatment by the Tour has merit, but this federal lawsuit about bibs does not.” The court’s ruling relied heavily on the contract that each caddie must sign with the Tour to work an event. The form contract provides that “(c)addies shall wear uniforms…as prescribed by the host tournament and the PGA TOUR,” but does not explicitly require a caddie to wear a tournament bib. The caddies argued that the contract’s particular silence as to bibs precludes the Tour from requiring the caddies to wear the advertisement-laden smocks between the ropes. As a matter of contract interpretation, Judge Chhabria cited the general rule that even where disputed contract language appears ambiguous, the ambiguity can be resolved as a matter of law where context reveals that the language is susceptible to only one interpretation. The court found context in the caddies’ own admission that the Tour has required them to wear bibs for decades as the primary part of their “uniform.” Therefore, concluded Judge Chhabria, the only reasonable interpretation of the contract is that caddies agreed the Tour could make them wear bibs.

Resting upon this interpretation of the Tour contract, the court ruled that the critical element in the caddies’ right of publicity violation claim was not satisfied, namely, a lack of consent. Because the court interpreted the caddie contract as requiring the caddies to wear bibs, and when read with a provision of the contract whereby caddies assign to the Tour their “individual television, radio, motion picture, photographic, electronic … and all other similar or related media rights” with respect to their participation in Tour events, the court concluded that the caddies consented to the use of their images at tournaments, including any logo on the bibs. Thus, tapping in an easy two-foot putt, the court dismissed the caddies’ claim relating to the right control the commercial use of their likenesses.

Even if the district court’s decision is upheld on appeal, all is not lost. Caddies still possess a long game and can always individually negotiate with sponsors to endorse products and place advertisements on other highly visible parts of the uniform, such as hats and shirt sleeves. Further, the court apparently did find some merit in the caddies’ allegations of poor treatment by the Tour, which may earn them a few strokes in the court of public opinion. So, they got that going for them, which is nice.

Article By Litigation Practice Group of Proskauer Rose LLP

California Court to PGA Tour Caddies: You'll Get Nothing and Like It!

As the full swing of the PGA season rounds the corner, and with the azaleas blooming at Augusta, the trusted confidants of golf’s premier players have already missed the cut.

Article By Litigation Practice Group of Proskauer Rose LLP

Dane County Judge: Wisconsin’s “Right to Work” law unconstitutional

wisconsin supreme court In a decision issued April 8, 2016, Dane County Circuit Court Judge William Foust ruled that Wisconsin’s “Right to Work” law violates the Wisconsin Constitution because it takes union property without just compensation (i.e., it is an unlawful taking).

According to the Wisconsin Manufacturers & Commerce (WMC), which played a leading role in seeking and attaining passage of the law, Judge Foust’s decision “is an act of blatant judicial activism that will not withstand appellate review.” Wisconsin Attorney General Brad Schimel also issued a statement expressing disappointment in the ruling and stating that he is “confident the law will be upheld on appeal.”

Judge Foust ruled that the law unconstitutionally takes union property by forcing a union to represent workers who are not members of the union and do not pay dues to the union. Judge Foust found the State’s argument that “neither federal law nor state law requires a union or other entity to become an exclusive bargaining representative” to be “disingenuous.” According to Judge Foust, the unions have no choice in representing all employees because, by law, their existence depends upon being the exclusive bargaining agent for any particular bargaining unit.

A copy of Judge Foust’s order is available here.

The National Law Forum

Introducing the New SmartExpert: Self-driving Car "Drivers"

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Coca-Cola Bottling Of Mobile to Pay $35,000 to Settle EEOC Sex Discrimination Suit

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OCC Releases White Paper Discussing Plans For Understanding and Evaluating Financial Technology Innovations

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Asking for Business From a Distance

Asking for business feels a lot weightier for the attorney than for the client.

Words don’t matter as much as tone of voice.

Your tone and other vocal cues are determined by your intention, attitude and approach.

Individuals’ affinity for phone conversations varies.

Most of the time, any form of asking for business is preferable to none at all.

Like this:

Improved US – Cuba Relations Create Potential FCPA Risks for US Companies Looking to do Business There

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Department of State Issues May 2016 Visa Bulletin

Like this:

California Court to PGA Tour Caddies: You’ll Get Nothing and Like It!

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California Court to PGA Tour Caddies: You'll Get Nothing and Like It!

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Dane County Judge: Wisconsin’s “Right to Work” law unconstitutional

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Company Refused Job to Experienced Applicant Because of Gender, Federal Agency Charged

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Asking for business feels a lot weightier for the attorney than for the client.

Words don’t matter as much as tone of voice.

Your tone and other vocal cues are determined by your intention, attitude and approach.

Individuals’ affinity for phone conversations varies.

Most of the time, any form of asking for business is preferable to none at all.

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