By John A. Schifino
Section 20(a) of the Securities Exchange Act of 1934 states as follows:
(a) Joint and several liability; good faith defense
Every person who, directly or indirectly, controls any person liable under any provision of this chapter or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable ... unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action.
15 U.S.C. § 78t(a). The scope of Section 20(a) is significant – any “control” person, such as an officer or director of a securities firm, can be held liable jointly and severally for the bad acts of a controlled person, e.g., an employee. It appears from the statute that the mere allegation of control person status would sufficiently state a claim for Section 20(a) liability and survive a motion to dismiss.
In In re Digital Island Securities Litigation, 223 F.Supp.2d 546 (D. Del. 2002), District Court Judge Gregory M. Sleet considered Section 20(a) and provided a detailed opinion about a plaintiff’s obligation to state a claim thereunder. Judge Sleet’s decision is regularly cited as one of the seminal decisions on control person liability under the Securities Exchange Act.
Judge Sleet held that in order to maintain a cause of action for control person liability, a plaintiff must establish: (1) an underlying violation by a controlled person or entity; (2) that the defendant is a “controlling person;” and (3) that the defendant was in some meaningful sense a culpable participant in the fraud. In re Digital Island, 223 F.Supp.2d at 560.
In considering the first element of plaintiff’s Section 20(a) claim, Judge Sleet held that the court should do so with the Private Securities Litigation Reform Act (“PSLRA”) in mind. The PSLRA raised Federal Rule of Civil Procedure 9(b)’s pleading requirements in securities fraud actions to discourage frivolous, speculative lawsuits. Oran v. Stafford, 226 F.3d 275, 288 (3d Cir. 2000). The PSLRA changed the pleading requirements in private securities fraud litigation by requiring that a complaint plead both falsity and scienter with particularity. In re Digital Island, 223 F.Supp.2d at 551.
As to the second element of a Section 20(a) claim, Judge Sleet noted that the plaintiff’s legal conclusions that the individual defendant qualifies as a “controlling person” under Section 20(a) may not be accepted as true absent factual support. Id. at 561. Thus, the heightened pleading standard of PSLRA requires that a claim for control person liability state with particularity the circumstances of both the defendant’s control of the primary violator, as well as of the defendant’s culpability as a controlling person. Id.
This third element of a Section 20(a) claim is the most significant of the three. This element establishes a critical principle – a control person cannot be held liable under Section 20(a) without proof of some personal fault.
Wednesday, April 30, 2014
Monday, April 28, 2014
Florida Bar Pro Bono Reporting: Option Two ― The Best-Kept Secret
By Lynn Hanshaw
The Florida Bar Annual Membership Pro Bono Reporting Form has six options. This article is to introduce Option Two to the legal community of the Sixth and Thirteen Judicial Circuits through a local program tentatively called SHARE (Sharing Hours And Reaping Equity).
Over the next several months, expect to hear and see information about SHARE and how it can benefit your firm and your community. The authority for the SHARE program is found in Rule 4-6.5(c) of the Florida Rules of Professional Conduct and is expected to work as follows:
A law firm that chooses to participate will design a “plan.” This plan, called a “voluntary pro bono plan,” has as its goal “the improvement of the availability of legal services to the poor and the expansion of present pro bono legal services” Rule 4-6.5(a). This simple concept is limited only by the broad provisions of Rule 4-6.5(c), as applicable.
A plan, once created, gets submitted to the local Standing Committee on Pro Bono Legal Service [Rule 4-6.5(b)], where it will be reviewed for compliance. Once approved, the plan may be implemented and the pro bono hours earned may be distributed according to the schedule outlined in the plan. The distributed hours are then reported on The Florida Bar annual reporting form. Under the rule, the only requirement of the distribution is that it be done in a fair and reasonable manner as determined by the firm. It’s that simple.
Rule 4-6.1 defines an attorney’s aspirational pro bono goal as 20 hours. Under SHARE, a designated number of attorneys for each firm will earn those 20 hours for themselves and the remainder of the firm. These hours can be accrued through: (1) a major case or matter involving a substantial expenditure of time and resources; (2) a full-time community or public service staff; or (3) any other manner that has been approved by the circuit pro bono committee in the circuit in which the firm practices.
Rule 4-6.5(d) plan suggestions include:
(1) representation of clients through case referral;
(2) interviewing of prospective clients;
(3) participation in pro se clinics and other clinics in which lawyers provide advice and counsel;
(4) acting as co-counsel on cases or matters with legal assistance providers and other pro bono lawyers;
(5) providing consultation services to legal assistance providers for case reviews and evaluations;
(6) participation in policy advocacy;
(7) providing training to the staff of legal assistance providers and other volunteer pro bono attorneys;
(8) making presentations to groups of poor people regarding their rights and obligations under the law;
(9) providing legal research;
(10) providing guardian ad litem services;
(11) providing assistance in the formation and operation of legal entities for groups of poor persons; and
(12) serving as a mediator or arbitrator at no fee to the client-eligible party.
However, this list is far from exhaustive. “Any legal services to charitable, religious, or educational organizations whose overall mission and activities are designed predominately to address the needs of the poor, including the working poor, are also permitted.”
If you are drawn to pro bono work, this is a great tool to get your firm’s support. The plans are custom-made, allowing each firm to designate as many attorneys it determines appropriate and how those attorneys will spend their pro bono time. The entire firm will be involved in and benefit from the good work.
A fill-in-the-blank form for plan submissions is in the works, and we hope to get it to you soon. For now, get your creative juices flowing and let’s begin to SHARE. It’s a win/win for everyone.
The Florida Bar Annual Membership Pro Bono Reporting Form has six options. This article is to introduce Option Two to the legal community of the Sixth and Thirteen Judicial Circuits through a local program tentatively called SHARE (Sharing Hours And Reaping Equity).
Over the next several months, expect to hear and see information about SHARE and how it can benefit your firm and your community. The authority for the SHARE program is found in Rule 4-6.5(c) of the Florida Rules of Professional Conduct and is expected to work as follows:
A law firm that chooses to participate will design a “plan.” This plan, called a “voluntary pro bono plan,” has as its goal “the improvement of the availability of legal services to the poor and the expansion of present pro bono legal services” Rule 4-6.5(a). This simple concept is limited only by the broad provisions of Rule 4-6.5(c), as applicable.
A plan, once created, gets submitted to the local Standing Committee on Pro Bono Legal Service [Rule 4-6.5(b)], where it will be reviewed for compliance. Once approved, the plan may be implemented and the pro bono hours earned may be distributed according to the schedule outlined in the plan. The distributed hours are then reported on The Florida Bar annual reporting form. Under the rule, the only requirement of the distribution is that it be done in a fair and reasonable manner as determined by the firm. It’s that simple.
Rule 4-6.1 defines an attorney’s aspirational pro bono goal as 20 hours. Under SHARE, a designated number of attorneys for each firm will earn those 20 hours for themselves and the remainder of the firm. These hours can be accrued through: (1) a major case or matter involving a substantial expenditure of time and resources; (2) a full-time community or public service staff; or (3) any other manner that has been approved by the circuit pro bono committee in the circuit in which the firm practices.
Rule 4-6.5(d) plan suggestions include:
(1) representation of clients through case referral;
(2) interviewing of prospective clients;
(3) participation in pro se clinics and other clinics in which lawyers provide advice and counsel;
(4) acting as co-counsel on cases or matters with legal assistance providers and other pro bono lawyers;
(5) providing consultation services to legal assistance providers for case reviews and evaluations;
(6) participation in policy advocacy;
(7) providing training to the staff of legal assistance providers and other volunteer pro bono attorneys;
(8) making presentations to groups of poor people regarding their rights and obligations under the law;
(9) providing legal research;
(10) providing guardian ad litem services;
(11) providing assistance in the formation and operation of legal entities for groups of poor persons; and
(12) serving as a mediator or arbitrator at no fee to the client-eligible party.
However, this list is far from exhaustive. “Any legal services to charitable, religious, or educational organizations whose overall mission and activities are designed predominately to address the needs of the poor, including the working poor, are also permitted.”
If you are drawn to pro bono work, this is a great tool to get your firm’s support. The plans are custom-made, allowing each firm to designate as many attorneys it determines appropriate and how those attorneys will spend their pro bono time. The entire firm will be involved in and benefit from the good work.
A fill-in-the-blank form for plan submissions is in the works, and we hope to get it to you soon. For now, get your creative juices flowing and let’s begin to SHARE. It’s a win/win for everyone.
Sunday, April 27, 2014
Community Services Committee: Please Do Not Forget The Defenseless And The Oppressed
By Lara LaVoie
“Child abuse casts a shadow the length of a lifetime.” ― Henry Ward
A Kid’s Place in Brandon is a state-of-the-art facility that houses about 75 children (up to age 17) at any one time. The children living there have suffered abuse, neglect, and abandonment and have been in horrible situations that many of us could never imagine. To help these amazing children feel like kids for a day, the Community Services Committee (CSC), in conjunction with A Kid’s Place, will be throwing them their very own Pirate Party on Saturday, May 3.
To make this event a success, CSC needs any amount of donations that can be spared. However, by the time you read this article, the Pirate Party may have already taken place. Please consider helping these wonderful kids in any way you can! They really appreciate your support and generosity. For more information about A Kid’s Place, please visit: www.akidsplace.org.
***
“I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay anyone’s cause for lucre or malice. So help me God.” ― Oath of Admission to The Florida Bar
This promise included in the attorney’s oath taken by every Florida lawyer is often forgotten in the busyness of our lives and careers. As Chief Justice Peggy A. Quince has reminded us, “Pro bono legal services provided free to the poor are part of an overall obligation attorneys assume when they take the oath of attorney.” I have to admit that I have not fulfilled this obligation to the best of my ability, and every year that I look at my Florida Bar fee statement, I am starkly reminded that I have no meaningful hours to enter in the pro bono section. Sure, I have spent some significant time helping friends and family members with legal issues and paperwork, but I don’t think I have truly done what we are asked to do when we take the oath.
Fortunately, being part of the CSC has enabled me to not only serve the community as a volunteer in non-legal ways, but it has also allowed me to take advantage of the opportunity to engage in meaningful pro bono work. By the time this article is published, the CSC will have undertaken its first pro bono project for this year in conjunction with Bay Area Legal Services. We hope that this is the first of many pro bono projects that we can participate in as a group to fulfill this professional obligation. Great ideas and volunteers are welcome!
For more information about joining the CSC, or to volunteer, please contact CSC Chairs Lisa Esposito, (813) 223-6037 or lisa@lesposito.com, or Lara LaVoie, (813) 638-1357 or lmlavoie11@gmail.com. Thank you in advance for your help and support!
“Child abuse casts a shadow the length of a lifetime.” ― Henry Ward
A Kid’s Place in Brandon is a state-of-the-art facility that houses about 75 children (up to age 17) at any one time. The children living there have suffered abuse, neglect, and abandonment and have been in horrible situations that many of us could never imagine. To help these amazing children feel like kids for a day, the Community Services Committee (CSC), in conjunction with A Kid’s Place, will be throwing them their very own Pirate Party on Saturday, May 3.
To make this event a success, CSC needs any amount of donations that can be spared. However, by the time you read this article, the Pirate Party may have already taken place. Please consider helping these wonderful kids in any way you can! They really appreciate your support and generosity. For more information about A Kid’s Place, please visit: www.akidsplace.org.
***
“I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay anyone’s cause for lucre or malice. So help me God.” ― Oath of Admission to The Florida Bar
This promise included in the attorney’s oath taken by every Florida lawyer is often forgotten in the busyness of our lives and careers. As Chief Justice Peggy A. Quince has reminded us, “Pro bono legal services provided free to the poor are part of an overall obligation attorneys assume when they take the oath of attorney.” I have to admit that I have not fulfilled this obligation to the best of my ability, and every year that I look at my Florida Bar fee statement, I am starkly reminded that I have no meaningful hours to enter in the pro bono section. Sure, I have spent some significant time helping friends and family members with legal issues and paperwork, but I don’t think I have truly done what we are asked to do when we take the oath.
Fortunately, being part of the CSC has enabled me to not only serve the community as a volunteer in non-legal ways, but it has also allowed me to take advantage of the opportunity to engage in meaningful pro bono work. By the time this article is published, the CSC will have undertaken its first pro bono project for this year in conjunction with Bay Area Legal Services. We hope that this is the first of many pro bono projects that we can participate in as a group to fulfill this professional obligation. Great ideas and volunteers are welcome!
For more information about joining the CSC, or to volunteer, please contact CSC Chairs Lisa Esposito, (813) 223-6037 or lisa@lesposito.com, or Lara LaVoie, (813) 638-1357 or lmlavoie11@gmail.com. Thank you in advance for your help and support!
Friday, April 25, 2014
Promoting And Monitoring Professionalism Among Attorneys
By Katelyn Desrosiers
Following the Florida Supreme Court’s Opinion No. SC 13-688, In Re: Code for Resolving Professional Complaints, the Thirteenth Judicial Circuit Committee on Professionalism and the Hillsborough County Bar Association Professionalism and Ethics Committee joined efforts and created a joint committee to address the Supreme Court’s mandate. The opinion tasked each of the state’s judicial circuits with creating a local professionalism panel to address unprofessional conduct not rising to the level of a formal Bar grievance. Initially, a small taskforce brainstormed how to synergize our circuit’s efforts to promote professionalism and how to structure a local professionalism complaint process.
As a result of that meeting, on October 28, 2013, Chief Judge Manuel Menendez Jr. issued Administrative Order S-2013-071, which established our circuit’s Local Professionalism Panel (LPP) and created a process by which the panel receives, hears, and disposes of complaints. It further created subcommittees, including the communications and promotions committees, to give the Thirteenth Circuit’s committee a voice and to promote professionalism within the circuit. The administrative order also consolidated into the LPP the HCBA Peer Review Program so that the LPP will be responsible for addressing complaints previously referred to the Peer Review Program.
Per the administrative order, any person may initiate a complaint against an attorney with the LPP and deliver it to the LPP chair, who will review the complaint and determine whether it is appropriate for referral to the LPP Review Panel. The panel consists of at least one judge and two other “members in good standing of the [HCBA] and the Florida Bar, [who] have been in practice at least ten years and have attained the highest respect of their peers and the judiciary for their professionalism and quality of practice.” Administrative Order S-2013-071. The panel will meet without the subject attorney to review the complaint and determine whether it merits a meeting with the subject attorney. In less serious cases, a member of the panel may meet and discuss the process with the subject attorney. In more serious cases, the full panel may meet with the subject attorney to review the complaint and determine whether he or she may benefit from various training programs offered in the circuit. In instances where the unprofessional conduct is so egregious that the LPP cannot appropriately dispose of the matter locally, the panel will send the matter back to the LPP chair for referral to the Attorney Consumer Assistance and Intake Program (ACAP).
Both the administrative order and Supreme Court’s mandate require that the Thirteenth Circuit’s committee submit an annual report on the status of professionalism and professional activities in the circuit. In a meeting on January 7, the committee’s executive chair, the Honorable Ashley B. Moody, requested that all members (who are representatives of the circuit’s voluntary bar associations and sections, committees, and divisions of the HCBA) report any professionalism activities that their respective organizations completed in the past year. There was an overwhelming response. Stay tuned.
Following the Florida Supreme Court’s Opinion No. SC 13-688, In Re: Code for Resolving Professional Complaints, the Thirteenth Judicial Circuit Committee on Professionalism and the Hillsborough County Bar Association Professionalism and Ethics Committee joined efforts and created a joint committee to address the Supreme Court’s mandate. The opinion tasked each of the state’s judicial circuits with creating a local professionalism panel to address unprofessional conduct not rising to the level of a formal Bar grievance. Initially, a small taskforce brainstormed how to synergize our circuit’s efforts to promote professionalism and how to structure a local professionalism complaint process.
As a result of that meeting, on October 28, 2013, Chief Judge Manuel Menendez Jr. issued Administrative Order S-2013-071, which established our circuit’s Local Professionalism Panel (LPP) and created a process by which the panel receives, hears, and disposes of complaints. It further created subcommittees, including the communications and promotions committees, to give the Thirteenth Circuit’s committee a voice and to promote professionalism within the circuit. The administrative order also consolidated into the LPP the HCBA Peer Review Program so that the LPP will be responsible for addressing complaints previously referred to the Peer Review Program.
Per the administrative order, any person may initiate a complaint against an attorney with the LPP and deliver it to the LPP chair, who will review the complaint and determine whether it is appropriate for referral to the LPP Review Panel. The panel consists of at least one judge and two other “members in good standing of the [HCBA] and the Florida Bar, [who] have been in practice at least ten years and have attained the highest respect of their peers and the judiciary for their professionalism and quality of practice.” Administrative Order S-2013-071. The panel will meet without the subject attorney to review the complaint and determine whether it merits a meeting with the subject attorney. In less serious cases, a member of the panel may meet and discuss the process with the subject attorney. In more serious cases, the full panel may meet with the subject attorney to review the complaint and determine whether he or she may benefit from various training programs offered in the circuit. In instances where the unprofessional conduct is so egregious that the LPP cannot appropriately dispose of the matter locally, the panel will send the matter back to the LPP chair for referral to the Attorney Consumer Assistance and Intake Program (ACAP).
Both the administrative order and Supreme Court’s mandate require that the Thirteenth Circuit’s committee submit an annual report on the status of professionalism and professional activities in the circuit. In a meeting on January 7, the committee’s executive chair, the Honorable Ashley B. Moody, requested that all members (who are representatives of the circuit’s voluntary bar associations and sections, committees, and divisions of the HCBA) report any professionalism activities that their respective organizations completed in the past year. There was an overwhelming response. Stay tuned.
The Thirteenth Judicial Circuit 2014 Pro Bono Service Award Winners
By Rory B. Weiner
There is a saying in the Talmud that “whoever saves one life saves the whole world.” Likewise, I suggest, “whoever defends an individual’s rights defends us all.” On April 24, at the seventh annual Thirteenth Judicial Circuit Pro Bono Services Awards Ceremony, we honored these defenders of our rights: attorneys Wesley Tibbals, Sara Alpert, Betsy Hapner; paralegal Jan Brown; the law firm of Zuckerman Spaeder; and the nonprofit legal originations of Crossroads for Florida Kids Inc. and Hillsborough County Bar Association. The award nominations were submitted to the Thirteenth Judicial Circuit Pro Bono Committee, chaired by the Hon. Catherine Peek McEwen. The ceremony was sponsored by the committee, Bay Area Legal Services Volunteer Lawyers Program, and the Hillsborough County Bar Association.
Hillsborough County Bar Association’s Jimmy Kynes Pro Bono Service Award
Wesley “Wes” Tibbals is a partner at Akerman LLP’s Tampa office, where he practices in the areas of commercial litigation, products liability, and labor and employment law. He has been named a 2010-2013 Super Lawyer for his skills in business law and commercial litigation. He is a 1998 graduate of the University of Florida Levin School of Law. Since 2008, Tibbals has contributed more than 800 hours of pro bono services to the Attorney ad Litem program, representing children in the Delinquency Division.
Tibbals grew up in Umatilla, Florida, and graduated from Umatilla High School. In 2007, he returned there to provide pro bono services to a resident who lost his mobile home in a deadly tornado. Tibbals helped resolve the resident’s legal issues and raised money to help him purchase a new mobile home and the cost of placing it on his property.
Since 2008, Tibbals has applied his compassion and legal skills to help children in Hillsborough County facing tragedy in their lives. He has served as an Attorney ad Litem in the Delinquency Division of the Thirteenth Judicial Circuit. He was also one of a handful of attorneys who reliably showed up when the delinquency judges called to help children who might otherwise be alone while not conferring with their public defender. These were children whose parents or grandparents were unable to help them when they needed it the most. Tibbals stepped in and provided more than legal assistance; he was often a “substitute parent” who listened to their problems, helped enroll them in school, get Medicaid, and complete probation requirements.
Tibbals’ modesty doesn’t allow him to reveal the actual hours he devotes to helping children. Judge Rex M. Barbas, however, has observed that “in my court alone, Wes has been here well over 100 hours in the last two years representing children.” Because Tibbals also appears in the two other delinquency courtrooms, others estimate that he contributes more than 100 hours each year and an additional 50 hours each year outside the courtroom for extended representation. After Crossroads for Florida Kids Inc. took over the Attorney ad Litem program in 2013, Tibbals mentored its principals, recruited new attorneys, and placed himself on call two days a week, sometimes more if other attorneys could not attend. Thus, since 2008, Tibbals has likely contributed more than 800 hours of pro bono services to the Attorney ad Litem program.
Outstanding Pro Bono Service by a Law Firm
Zuckerman Spaeder LLP was founded in Washington, D.C., in 1975. The firm represents individuals and businesses in complex, highly contested civil and criminal cases. It has offices in Washington, New York, Baltimore, and Tampa. The firm has been named to The National Law Journal’s Midsize Hot List every year since 2010.
Zuckerman Spaeder is a firm with a culture of pro bono service. Since the firm’s Tampa office was opened in 1991, it has contributed more than 4,600 pro bono hours. In 2013, this office of 12 attorneys contributed more than 1,200 hours of pro bono service! As Judge Ralph Stoddard observed: “I have personally witnessed [two Zuckerman Spaeder] lawyers contribute hundreds of hours in my division, so I can only assume that the total number of hours spent by the firm is generous indeed.”
The Tampa office’s pro bono services are wide ranging and complex. Partner Jack E. Fernandez and associates Jo Ann Palchak and Mamie Wise filed a federal lawsuit on behalf of migrant farmworkers against a Florida tomato grower who failed to pay them minimum wage. Partner Marcos Hasbun, Palchak, Wise, and Sara Alpert represented foster care children in Hillsborough County’s dependency and delinquency courts. Palchak and Wise also represent, under the supervision of Lee Fugate, a criminal defendant seeking post-conviction relief based on new evidence available from DNA testing.
Zuckerman Spaeder’s Tampa office is also involved in numerous community programs that promote pro bono. Its attorneys sit on the board and contribute to Bay Area Legal Services; assisted in the formation of Crossroads for Florida Kids Inc., which represents youths in foster care; and participate in Florida 4-H Foundation, various outreach programs such as breast cancer awareness, and the coordination of mock trials at the Academy Prep in Ybor City.
Outstanding Pro Bono Service by a Young Lawyer
Sara Alpert is an associate in the Tampa office of Zuckerman Spaeder LLP. She represents individuals and businesses in criminal and civil litigation and governmental investigations. She is a graduate of Johns Hopkins University and the University of Maryland School of Law.
In 2013, Alpert contributed more than 250 pro bono hours representing two clients in foster care as a Crossroads for Florida Kids Inc. pro bono attorney. She was lead attorney representing a teenager in foster care whose parents were deceased and her relatives refused to care for her. By providing the teen legal help and personal counseling, Alpert helped her stabilize over the past year. Alpert also represented a 17-year-old girl who faced the prospect of returning to an abusive home or marrying a boy she knew for four months. Alpert helped her find an alternative by petitioning for emancipation; since then, the teen has graduated high school and is applying to colleges.
Alpert’s community involvement is extensive, having contributed about 250 hours raising awareness and securing funding for the mission of Bay Area Legal Services. She also organized the mock trial program at the Academy Prep Center in Ybor City and helped them prepare for a statewide competition.
Outstanding Pro Bono Service by a Lawyer
Elizabeth L. “Betsey” Hapner has been a sole practitioner for more than 25 years, focusing on family law, mortgage foreclosure defense, probate, and estate planning. She received her bachelor’s degree and her law degree from the University of Florida. According to Hillsborough County Circuit Judge Caroline J. Tesche, “Ms. Hapner has truly been a tireless champion in providing pro bono services in our circuit.”
“I have seen few individuals with the dedication Betsey has toward pro bono work,” praised Judge Rex M. Barbas, “she is a shining example of what lawyers should be.”
These accolades are well deserved. In 2013, Hapner contributed more than 550 pro bono hours assisting clients referred to her from Bay Area Legal Services. She contributed more than 170 hours representing children in the Delinquency Division and 240 hours representing seven children and young adults as a Crossroads for Florida Kids Inc. pro bono attorney. Her cases have involved real estate, paternity, probate, time sharing and child support, criminal, and probation matters.
In addition to her decades of pro bono work, Hapner has tirelessly lobbied for rule and statutory changes in the areas of juvenile law and family law. She has also generously given her time and expertise to advance the legal profession through her involvement in dozens of legal organizations and community projects.
Outstanding Pro Bono Service by an Organization
Crossroads for Florida Kids Inc. was created in 2012 by Rosemary Armstrong as a nonprofit organization to promote and facilitate pro bono legal services for children in dependency and delinquency proceedings. It recruits volunteer attorneys and provides them training and ongoing mentoring. These pro bono attorneys meet their young clients at the crossroads of their lives and, through counseling and advocacy, help them to persevere and become productive citizens.
In 2013, Crossroads recruited more than 90 local attorneys who collectively contributed more than 3,500 pro bono hours representing 43 children in foster care and 19 teens for extended representations in the Delinquency Division. Since May 2013, Crossroads pro bono attorneys also attended the hearings and trials of approximately 150 youths in delinquency who came to their proceedings unaccompanied by a parent or guardian.
Outstanding Pro Bono Service by a Paralegal
Jan L. Brown is a litigation paralegal in the Tampa office of James, Hoyer, Newcomer & Smiljanich, P.A. The firm practices in the areas of class actions, false claims, consumer, and Qui Tam law. Brown dedicates herself to helping individual clients in need and legal organizations that provide pro bono services.
In 2013, Brown provided more than 28 hours of pro bono services to clients involving foreclosure and the Hague Convention. She has been contributing this level of pro bono work for the past three years. As the Tampa Bay Paralegal Association’s Pro Bono Chair, Brown advocated the inclusion of paralegals in pro bono projects such as the Wills for Heroes Program, actively recruited paralegals to participate, and contributed more than 20 hours of pro bono services herself.
Brown has served as the paralegal liaison for the Thirteenth Judicial Circuit’s Pro Bono Committee since 2012, spending more than 35 hours assisting with the committee’s Circuit Pro Bono Report, which is a circuit-wide compilation of pro bono activity reported to the Florida Supreme Court. With professionalism and dedication, Brown has spent more than 125 hours of service on various pro bono projects since 2011.
Special Recognition Award
The Hillsborough County Bar Association has long been a stalwart supporter of legal services for the poor. The HCBA has promoted pro bono service among its sections and committees and throughout its membership. A “Quick Link” to Pro Bono Opportunities offered by the Bay Area Legal Services Bay Area Volunteer Lawyers Program (BAVLP) is included in its weekly e-newsletter, and for more than a decade, the HCBA has provided a table at its membership luncheon meetings for use by the BAVLP staff to recruit volunteer attorneys. The HCBA has offered its meeting rooms for use by the circuit’s Pro Bono Committee for its quarterly meetings, as well as for its annual awards ceremony and reception. Furthermore, the HCBA has also sponsored the annual Jimmy Kynes Pro Bono Service Award.
When the economy took a downturn in recent years, many legal services programs throughout the nation, including BALS, suffered cutbacks in funding. This resulted in BALS’ loss of 10 staff positions. The HCBA stepped up to assist BALS in several different ways. BALS Chief Executive Officer and President Richard Woltmann recalls: “[In] order to help BALS persuade attorneys and law firms to provide philanthropic donations in a time of reductions in funding for legal services for the poor, in 2012 and 2013, the HCBA president, Bob Nader, personally wrote to the chair of every HCBA section and committee requesting that they provide time at one of their meetings for BALS representatives to explain the financial crisis faced by the organization. These presentations helped BALS increase its annual attorney giving by about $100,000 annually and helped BALS maintain critical services to its clientele.”
There is a saying in the Talmud that “whoever saves one life saves the whole world.” Likewise, I suggest, “whoever defends an individual’s rights defends us all.” On April 24, at the seventh annual Thirteenth Judicial Circuit Pro Bono Services Awards Ceremony, we honored these defenders of our rights: attorneys Wesley Tibbals, Sara Alpert, Betsy Hapner; paralegal Jan Brown; the law firm of Zuckerman Spaeder; and the nonprofit legal originations of Crossroads for Florida Kids Inc. and Hillsborough County Bar Association. The award nominations were submitted to the Thirteenth Judicial Circuit Pro Bono Committee, chaired by the Hon. Catherine Peek McEwen. The ceremony was sponsored by the committee, Bay Area Legal Services Volunteer Lawyers Program, and the Hillsborough County Bar Association.
Hillsborough County Bar Association’s Jimmy Kynes Pro Bono Service Award
Wesley “Wes” Tibbals is a partner at Akerman LLP’s Tampa office, where he practices in the areas of commercial litigation, products liability, and labor and employment law. He has been named a 2010-2013 Super Lawyer for his skills in business law and commercial litigation. He is a 1998 graduate of the University of Florida Levin School of Law. Since 2008, Tibbals has contributed more than 800 hours of pro bono services to the Attorney ad Litem program, representing children in the Delinquency Division.
Tibbals grew up in Umatilla, Florida, and graduated from Umatilla High School. In 2007, he returned there to provide pro bono services to a resident who lost his mobile home in a deadly tornado. Tibbals helped resolve the resident’s legal issues and raised money to help him purchase a new mobile home and the cost of placing it on his property.
Since 2008, Tibbals has applied his compassion and legal skills to help children in Hillsborough County facing tragedy in their lives. He has served as an Attorney ad Litem in the Delinquency Division of the Thirteenth Judicial Circuit. He was also one of a handful of attorneys who reliably showed up when the delinquency judges called to help children who might otherwise be alone while not conferring with their public defender. These were children whose parents or grandparents were unable to help them when they needed it the most. Tibbals stepped in and provided more than legal assistance; he was often a “substitute parent” who listened to their problems, helped enroll them in school, get Medicaid, and complete probation requirements.
Tibbals’ modesty doesn’t allow him to reveal the actual hours he devotes to helping children. Judge Rex M. Barbas, however, has observed that “in my court alone, Wes has been here well over 100 hours in the last two years representing children.” Because Tibbals also appears in the two other delinquency courtrooms, others estimate that he contributes more than 100 hours each year and an additional 50 hours each year outside the courtroom for extended representation. After Crossroads for Florida Kids Inc. took over the Attorney ad Litem program in 2013, Tibbals mentored its principals, recruited new attorneys, and placed himself on call two days a week, sometimes more if other attorneys could not attend. Thus, since 2008, Tibbals has likely contributed more than 800 hours of pro bono services to the Attorney ad Litem program.
Outstanding Pro Bono Service by a Law Firm
Zuckerman Spaeder LLP was founded in Washington, D.C., in 1975. The firm represents individuals and businesses in complex, highly contested civil and criminal cases. It has offices in Washington, New York, Baltimore, and Tampa. The firm has been named to The National Law Journal’s Midsize Hot List every year since 2010.
Zuckerman Spaeder is a firm with a culture of pro bono service. Since the firm’s Tampa office was opened in 1991, it has contributed more than 4,600 pro bono hours. In 2013, this office of 12 attorneys contributed more than 1,200 hours of pro bono service! As Judge Ralph Stoddard observed: “I have personally witnessed [two Zuckerman Spaeder] lawyers contribute hundreds of hours in my division, so I can only assume that the total number of hours spent by the firm is generous indeed.”
The Tampa office’s pro bono services are wide ranging and complex. Partner Jack E. Fernandez and associates Jo Ann Palchak and Mamie Wise filed a federal lawsuit on behalf of migrant farmworkers against a Florida tomato grower who failed to pay them minimum wage. Partner Marcos Hasbun, Palchak, Wise, and Sara Alpert represented foster care children in Hillsborough County’s dependency and delinquency courts. Palchak and Wise also represent, under the supervision of Lee Fugate, a criminal defendant seeking post-conviction relief based on new evidence available from DNA testing.
Zuckerman Spaeder’s Tampa office is also involved in numerous community programs that promote pro bono. Its attorneys sit on the board and contribute to Bay Area Legal Services; assisted in the formation of Crossroads for Florida Kids Inc., which represents youths in foster care; and participate in Florida 4-H Foundation, various outreach programs such as breast cancer awareness, and the coordination of mock trials at the Academy Prep in Ybor City.
Outstanding Pro Bono Service by a Young Lawyer
Sara Alpert is an associate in the Tampa office of Zuckerman Spaeder LLP. She represents individuals and businesses in criminal and civil litigation and governmental investigations. She is a graduate of Johns Hopkins University and the University of Maryland School of Law.
In 2013, Alpert contributed more than 250 pro bono hours representing two clients in foster care as a Crossroads for Florida Kids Inc. pro bono attorney. She was lead attorney representing a teenager in foster care whose parents were deceased and her relatives refused to care for her. By providing the teen legal help and personal counseling, Alpert helped her stabilize over the past year. Alpert also represented a 17-year-old girl who faced the prospect of returning to an abusive home or marrying a boy she knew for four months. Alpert helped her find an alternative by petitioning for emancipation; since then, the teen has graduated high school and is applying to colleges.
Alpert’s community involvement is extensive, having contributed about 250 hours raising awareness and securing funding for the mission of Bay Area Legal Services. She also organized the mock trial program at the Academy Prep Center in Ybor City and helped them prepare for a statewide competition.
Outstanding Pro Bono Service by a Lawyer
Elizabeth L. “Betsey” Hapner has been a sole practitioner for more than 25 years, focusing on family law, mortgage foreclosure defense, probate, and estate planning. She received her bachelor’s degree and her law degree from the University of Florida. According to Hillsborough County Circuit Judge Caroline J. Tesche, “Ms. Hapner has truly been a tireless champion in providing pro bono services in our circuit.”
“I have seen few individuals with the dedication Betsey has toward pro bono work,” praised Judge Rex M. Barbas, “she is a shining example of what lawyers should be.”
These accolades are well deserved. In 2013, Hapner contributed more than 550 pro bono hours assisting clients referred to her from Bay Area Legal Services. She contributed more than 170 hours representing children in the Delinquency Division and 240 hours representing seven children and young adults as a Crossroads for Florida Kids Inc. pro bono attorney. Her cases have involved real estate, paternity, probate, time sharing and child support, criminal, and probation matters.
In addition to her decades of pro bono work, Hapner has tirelessly lobbied for rule and statutory changes in the areas of juvenile law and family law. She has also generously given her time and expertise to advance the legal profession through her involvement in dozens of legal organizations and community projects.
Outstanding Pro Bono Service by an Organization
Crossroads for Florida Kids Inc. was created in 2012 by Rosemary Armstrong as a nonprofit organization to promote and facilitate pro bono legal services for children in dependency and delinquency proceedings. It recruits volunteer attorneys and provides them training and ongoing mentoring. These pro bono attorneys meet their young clients at the crossroads of their lives and, through counseling and advocacy, help them to persevere and become productive citizens.
In 2013, Crossroads recruited more than 90 local attorneys who collectively contributed more than 3,500 pro bono hours representing 43 children in foster care and 19 teens for extended representations in the Delinquency Division. Since May 2013, Crossroads pro bono attorneys also attended the hearings and trials of approximately 150 youths in delinquency who came to their proceedings unaccompanied by a parent or guardian.
Outstanding Pro Bono Service by a Paralegal
Jan L. Brown is a litigation paralegal in the Tampa office of James, Hoyer, Newcomer & Smiljanich, P.A. The firm practices in the areas of class actions, false claims, consumer, and Qui Tam law. Brown dedicates herself to helping individual clients in need and legal organizations that provide pro bono services.
In 2013, Brown provided more than 28 hours of pro bono services to clients involving foreclosure and the Hague Convention. She has been contributing this level of pro bono work for the past three years. As the Tampa Bay Paralegal Association’s Pro Bono Chair, Brown advocated the inclusion of paralegals in pro bono projects such as the Wills for Heroes Program, actively recruited paralegals to participate, and contributed more than 20 hours of pro bono services herself.
Brown has served as the paralegal liaison for the Thirteenth Judicial Circuit’s Pro Bono Committee since 2012, spending more than 35 hours assisting with the committee’s Circuit Pro Bono Report, which is a circuit-wide compilation of pro bono activity reported to the Florida Supreme Court. With professionalism and dedication, Brown has spent more than 125 hours of service on various pro bono projects since 2011.
Special Recognition Award
The Hillsborough County Bar Association has long been a stalwart supporter of legal services for the poor. The HCBA has promoted pro bono service among its sections and committees and throughout its membership. A “Quick Link” to Pro Bono Opportunities offered by the Bay Area Legal Services Bay Area Volunteer Lawyers Program (BAVLP) is included in its weekly e-newsletter, and for more than a decade, the HCBA has provided a table at its membership luncheon meetings for use by the BAVLP staff to recruit volunteer attorneys. The HCBA has offered its meeting rooms for use by the circuit’s Pro Bono Committee for its quarterly meetings, as well as for its annual awards ceremony and reception. Furthermore, the HCBA has also sponsored the annual Jimmy Kynes Pro Bono Service Award.
When the economy took a downturn in recent years, many legal services programs throughout the nation, including BALS, suffered cutbacks in funding. This resulted in BALS’ loss of 10 staff positions. The HCBA stepped up to assist BALS in several different ways. BALS Chief Executive Officer and President Richard Woltmann recalls: “[In] order to help BALS persuade attorneys and law firms to provide philanthropic donations in a time of reductions in funding for legal services for the poor, in 2012 and 2013, the HCBA president, Bob Nader, personally wrote to the chair of every HCBA section and committee requesting that they provide time at one of their meetings for BALS representatives to explain the financial crisis faced by the organization. These presentations helped BALS increase its annual attorney giving by about $100,000 annually and helped BALS maintain critical services to its clientele.”
Friday, April 18, 2014
Lawyers, Get The Most From Your Mediator
By Hilary High
Good mediators should love working hard to help litigants settle cases. Expect no less, and take steps to get the best your mediator has to offer. In other words, “Help me help you.” (Jerry Maguire’s client, Rod Tidwell, burst into laughter upon hearing Maguire’s plea. Nonetheless, if you want your mediator to either save you money or show you the money, help her help you.) Consider these tactics to maximize your mediator’s effectiveness.
1. Perform Due Diligence. Call potential mediators to discuss their experience, build rapport, and evaluate whether their approach is right for your case and client. Confidential ex parte communications are a benefit of mediation.
2. Expect the Mediator to Work Ahead. If something must occur before you can meaningfully mediate, let the mediator know in advance. Do you need discovery responses, records, a ruling on a key motion? The mediator may have ideas to get what needs to happen done, or about a workaround.
3. Use the Mediator’s Emotional Intelligence. Talk about party dynamics, your client’s experience with litigation, your relationship with opposing counsel, involvement of adjusters and other decision-makers, or anyone else who may impact the mediation. Share any larger consequences of the negotiations. Discuss why you anticipate taking certain approaches to issues or with attendees. These pieces of information will help the mediator set the right tone for the mediation.
4. Give the Mediator Information. Some lawyers provide information via letter, email, or a call before mediation, and others do not. If you do, include the following:
(a) Status of past and ongoing settlement discussions;
(b) Attendees’ names, titles, and roles;
(c) Procedural posture; and
(d) Factual and legal issues of the case.
Expect your mediator to read everything you send. Bullet point timelines are easier to use in caucus than narrative summaries.
5. Tell the Mediator Where Things Stand. Memories and notes about past demands and offers may differ. Discrepancies arise when lawyers have informal discussions, cases change hands, or for other reasons. Sort through that history before mediation to save time and avoid losing ground already gained.
6. Vet Your Demands and Offers with the Mediator. “The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem solving, and exploring settlement alternatives.” §44.1011(2), Fla. Stat. Expect your mediator to do these things. Experienced mediators have seen hundreds of people negotiate and may see things that are overlooked. Ask for thoughts and suggestions about issues, positions, and numbers, so you and your client have the benefit of your mediator’s ideas when making decisions.
7. Have the Mediator Message the Other Side.
(a) Numbers are more effective with messages than without. Without a message, a recipient will speculate about the number, your strategies, and your intentions. Telling the recipient this information eliminates time-consuming and distracting speculation.
(b) Use your mediator as a sounding board for messages you want to convey and to help you craft effective ones.
(c) If a message is crucial, delicate, or expected to evoke a strong reaction, have your mediator say it to you first. Hearing it yourself may make you reconsider the number and/or your message.
8. Expect the Mediator to Be the Last One to Quit.
Good mediators should love working hard to help litigants settle cases. Expect no less, and take steps to get the best your mediator has to offer. In other words, “Help me help you.” (Jerry Maguire’s client, Rod Tidwell, burst into laughter upon hearing Maguire’s plea. Nonetheless, if you want your mediator to either save you money or show you the money, help her help you.) Consider these tactics to maximize your mediator’s effectiveness.
1. Perform Due Diligence. Call potential mediators to discuss their experience, build rapport, and evaluate whether their approach is right for your case and client. Confidential ex parte communications are a benefit of mediation.
2. Expect the Mediator to Work Ahead. If something must occur before you can meaningfully mediate, let the mediator know in advance. Do you need discovery responses, records, a ruling on a key motion? The mediator may have ideas to get what needs to happen done, or about a workaround.
3. Use the Mediator’s Emotional Intelligence. Talk about party dynamics, your client’s experience with litigation, your relationship with opposing counsel, involvement of adjusters and other decision-makers, or anyone else who may impact the mediation. Share any larger consequences of the negotiations. Discuss why you anticipate taking certain approaches to issues or with attendees. These pieces of information will help the mediator set the right tone for the mediation.
4. Give the Mediator Information. Some lawyers provide information via letter, email, or a call before mediation, and others do not. If you do, include the following:
(a) Status of past and ongoing settlement discussions;
(b) Attendees’ names, titles, and roles;
(c) Procedural posture; and
(d) Factual and legal issues of the case.
Expect your mediator to read everything you send. Bullet point timelines are easier to use in caucus than narrative summaries.
5. Tell the Mediator Where Things Stand. Memories and notes about past demands and offers may differ. Discrepancies arise when lawyers have informal discussions, cases change hands, or for other reasons. Sort through that history before mediation to save time and avoid losing ground already gained.
6. Vet Your Demands and Offers with the Mediator. “The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem solving, and exploring settlement alternatives.” §44.1011(2), Fla. Stat. Expect your mediator to do these things. Experienced mediators have seen hundreds of people negotiate and may see things that are overlooked. Ask for thoughts and suggestions about issues, positions, and numbers, so you and your client have the benefit of your mediator’s ideas when making decisions.
7. Have the Mediator Message the Other Side.
(a) Numbers are more effective with messages than without. Without a message, a recipient will speculate about the number, your strategies, and your intentions. Telling the recipient this information eliminates time-consuming and distracting speculation.
(b) Use your mediator as a sounding board for messages you want to convey and to help you craft effective ones.
(c) If a message is crucial, delicate, or expected to evoke a strong reaction, have your mediator say it to you first. Hearing it yourself may make you reconsider the number and/or your message.
8. Expect the Mediator to Be the Last One to Quit.
Tuesday, April 15, 2014
Marital And Family Law: A Tool That Guards Against Inequitable Alimony Awards
By Allison M. Perry
In 2011, the Florida Legislature added Subsection 9 of § 61.08, which states: “The award of alimony may not leave the payor with significantly less net income than the net income of the recipient unless there are written findings of exceptional circumstances.” § 61.08(9), Fla. Stat. (2011). “The amendments to s. 61.08, Florida Statutes, made by this act are applicable to all cases pending on ... July 1, 2011.” See Ch. 2011-92, Sections 79-80, at 1704, Laws of Fla. Importantly, since there are no restrictions contained in § 61.08(9), it is applicable to all forms and all combinations of alimony awards.
There is only one district court opinion addressing the application of § 61.08(9), and it comes from the Fourth District Court of Appeals. In Koski v. Koski, 98 So. 3d 93 (Fla. 4th DCA 2012), the former husband sought a modification of his $400-per-month permanent alimony obligation to the former wife, based on a substantial increase in her income ($1,710 to $4,867 per month), while the former husband’s income remained relatively unchanged ($3,180 to $3,418 per month). Id at 95. The result of the existing alimony award left Ms. Koski with income of $5,267 per month and Mr. Koski with income of $3,018 per month. The trial court denied Mr. Koski’s petition for modification, finding that the former wife had experienced a substantial increase in her earnings, but there was “insufficient evidence that her needs are met or have decreased.” Id. The appellate court reversed, finding the trial court failed to consider all the relevant factors of § 61.08(2) in denying the petition, and that on remand if the court determines Mr. Koski still has to pay more than a nominal amount of alimony to Ms. Koski, it must make written findings of exceptional circumstances to justify the award of alimony because it leaves the former husband with significantly less income than the former wife. Id.
If your client is facing a request for any type of alimony award, it would be wise to advise the court that pursuant to § 61.08(9), any alimony award must not leave your client with “significantly less net income than the net income” of the opposing party. If your client is requesting an alimony award that may result in a significantly higher income to your client than the opposing party, you should establish “exceptional circumstances” that would permit and support the alimony award.
If the trial court issues an alimony award that results in the payor spouse’s net income being significantly less than the receiving spouse, and the order does not make the requisite finding that exceptional circumstances exist to support the award, the filing of a motion for rehearing asserting the lack of requisite factual finding to support the award is highly recommended. See Esaw v. Esaw, 965 So. 2d 126, 1263 (Fla. 2d DCA 2008); Broadfoot v. Broadfoot, 791 So. 2d 584 (Fla. 3d DCA 2001).
In 2011, the Florida Legislature added Subsection 9 of § 61.08, which states: “The award of alimony may not leave the payor with significantly less net income than the net income of the recipient unless there are written findings of exceptional circumstances.” § 61.08(9), Fla. Stat. (2011). “The amendments to s. 61.08, Florida Statutes, made by this act are applicable to all cases pending on ... July 1, 2011.” See Ch. 2011-92, Sections 79-80, at 1704, Laws of Fla. Importantly, since there are no restrictions contained in § 61.08(9), it is applicable to all forms and all combinations of alimony awards.
There is only one district court opinion addressing the application of § 61.08(9), and it comes from the Fourth District Court of Appeals. In Koski v. Koski, 98 So. 3d 93 (Fla. 4th DCA 2012), the former husband sought a modification of his $400-per-month permanent alimony obligation to the former wife, based on a substantial increase in her income ($1,710 to $4,867 per month), while the former husband’s income remained relatively unchanged ($3,180 to $3,418 per month). Id at 95. The result of the existing alimony award left Ms. Koski with income of $5,267 per month and Mr. Koski with income of $3,018 per month. The trial court denied Mr. Koski’s petition for modification, finding that the former wife had experienced a substantial increase in her earnings, but there was “insufficient evidence that her needs are met or have decreased.” Id. The appellate court reversed, finding the trial court failed to consider all the relevant factors of § 61.08(2) in denying the petition, and that on remand if the court determines Mr. Koski still has to pay more than a nominal amount of alimony to Ms. Koski, it must make written findings of exceptional circumstances to justify the award of alimony because it leaves the former husband with significantly less income than the former wife. Id.
If your client is facing a request for any type of alimony award, it would be wise to advise the court that pursuant to § 61.08(9), any alimony award must not leave your client with “significantly less net income than the net income” of the opposing party. If your client is requesting an alimony award that may result in a significantly higher income to your client than the opposing party, you should establish “exceptional circumstances” that would permit and support the alimony award.
If the trial court issues an alimony award that results in the payor spouse’s net income being significantly less than the receiving spouse, and the order does not make the requisite finding that exceptional circumstances exist to support the award, the filing of a motion for rehearing asserting the lack of requisite factual finding to support the award is highly recommended. See Esaw v. Esaw, 965 So. 2d 126, 1263 (Fla. 2d DCA 2008); Broadfoot v. Broadfoot, 791 So. 2d 584 (Fla. 3d DCA 2001).
Tuesday, April 8, 2014
Federal Appeals Courts Sack Use Of Player Likenesses In NCAA Football Video Game
By Jeff Fabian
In holding that Electronic Arts Inc.’s (EA) use of player likenesses in its popular “NCAA Football” video game series was not protected by the First Amendment, the Ninth Circuit Court of Appeals followed the Third Circuit and applied the “transformative use” test. In re NCAA Student-Athlete Name & Likeness Licensing Litig., 724 F.3d 1268 (9th Cir. 2013); Hart v. Electronic Arts, Inc., 717 F.3d 141 (3d Cir. 2013). These decisions seemingly depart from prior decisions applying the Rogers test to evaluate a First Amendment defense to right-of-publicity claims based on the unauthorized commercial use of a claimant’s likeness. See, e.g., Brown v. Electronic Arts, Inc., 724 F.3d 1235 (9th Cir. 2013); Parks v. LaFace Records, 329 F.3d 437 (6th Cir. 2003).
Both cases involve claims brought by former college athletes against EA alleging that the video game maker violated the players’ right of publicity under state law by including the players’ likenesses in multiple versions of “NCAA Football.” EA’s success with the “NCAA Football” franchise is in no small part owed to EA’s focus on realism and detail. Every team included in the game is populated by digital avatars resembling real-life counterparts with each player’s actual jersey number and similar appearances and biographical information. In fact, EA did not contest right-of-publicity liability but instead asserted that its use of player likenesses was a protected expression under the First Amendment.
The transformative use test applied by the Ninth and Third Circuits derives from copyright law and is an adaptation of a factor commonly considered when evaluating a fair-use defense — the purpose and character of the use. The central question is whether the accused use merely copies the plaintiff’s identity or instead creates something new. The test attempts to strike a balance between safeguarding a plaintiff’s right of publicity and the public’s interest in free expression.
By contrast, the Rogers test stems from trademark law and provides a defense to liability unless the claimant’s likeness has no artistic relevance to the accused work, or the work is explicitly misleading as to its source or content. In declining to apply the Rogers test, the circuit courts noted that the test was designed to protect consumers from the risk of confusion — a policy consistent with trademark law. The right of publicity on the other hand, serves a distinct purpose in protecting a form of intellectual property in one’s person.
Notably, cases applying the Rogers test often involve federal trademark claims related to the use of a plaintiff’s likeness to create confusion about affiliation or endorsement, but the former players made no such allegations against EA. Thus, it is likely premature to assume that the Rogers test will fall by the wayside, and practitioners should carefully consider the nature of the alleged harm as it relates to potential defenses against a right-of-publicity claim.
In holding that Electronic Arts Inc.’s (EA) use of player likenesses in its popular “NCAA Football” video game series was not protected by the First Amendment, the Ninth Circuit Court of Appeals followed the Third Circuit and applied the “transformative use” test. In re NCAA Student-Athlete Name & Likeness Licensing Litig., 724 F.3d 1268 (9th Cir. 2013); Hart v. Electronic Arts, Inc., 717 F.3d 141 (3d Cir. 2013). These decisions seemingly depart from prior decisions applying the Rogers test to evaluate a First Amendment defense to right-of-publicity claims based on the unauthorized commercial use of a claimant’s likeness. See, e.g., Brown v. Electronic Arts, Inc., 724 F.3d 1235 (9th Cir. 2013); Parks v. LaFace Records, 329 F.3d 437 (6th Cir. 2003).
Both cases involve claims brought by former college athletes against EA alleging that the video game maker violated the players’ right of publicity under state law by including the players’ likenesses in multiple versions of “NCAA Football.” EA’s success with the “NCAA Football” franchise is in no small part owed to EA’s focus on realism and detail. Every team included in the game is populated by digital avatars resembling real-life counterparts with each player’s actual jersey number and similar appearances and biographical information. In fact, EA did not contest right-of-publicity liability but instead asserted that its use of player likenesses was a protected expression under the First Amendment.
The transformative use test applied by the Ninth and Third Circuits derives from copyright law and is an adaptation of a factor commonly considered when evaluating a fair-use defense — the purpose and character of the use. The central question is whether the accused use merely copies the plaintiff’s identity or instead creates something new. The test attempts to strike a balance between safeguarding a plaintiff’s right of publicity and the public’s interest in free expression.
By contrast, the Rogers test stems from trademark law and provides a defense to liability unless the claimant’s likeness has no artistic relevance to the accused work, or the work is explicitly misleading as to its source or content. In declining to apply the Rogers test, the circuit courts noted that the test was designed to protect consumers from the risk of confusion — a policy consistent with trademark law. The right of publicity on the other hand, serves a distinct purpose in protecting a form of intellectual property in one’s person.
Notably, cases applying the Rogers test often involve federal trademark claims related to the use of a plaintiff’s likeness to create confusion about affiliation or endorsement, but the former players made no such allegations against EA. Thus, it is likely premature to assume that the Rogers test will fall by the wayside, and practitioners should carefully consider the nature of the alleged harm as it relates to potential defenses against a right-of-publicity claim.
Monday, April 7, 2014
Immigration Law: Understanding ICE Holds
By Maj Vasigh
The federal government’s most cost-effective method of detecting unlawful aliens in the United States is the use of what are commonly called “ICE holds.” These ICE holds, or detainers, are used to investigate, arrest, and eventually remove suspected illegal aliens from the United States. The process is cost-effective because the real work is basically outsourced to local police departments and county jails across the country.
How does this work? Brace yourself for acronyms. The U.S. Immigration and Customs Enforcement (ICE) Bureau of Enforcement and Removal Operations (ERO) is in charge of removing unlawful aliens. ICE ERO assigns officers to the Criminal Alien Program (CAP) to coordinate with local jails in support of their objective. In Hillsborough County, the CAP office is in downtown Tampa.
Ostensibly, the federal government’s objective is to detain and remove “criminals who pose a serious threat to public safety.” The practical analysis of who qualifies as a “criminal” is questionable. A study by Syracuse University found that in 2012, 48 percent of individuals targeted by immigration detainers nationwide had no prior criminal conviction.
A common hypothetical? Officer Farva arrests Juan for having no valid driver’s license, a traffic misdemeanor. Juan is booked and processed into Orient Road Jail and is issued a standard $250 bond. Because Juan doesn’t have a social security number, a jail employee notifies a Tampa ERO CAP officer, who in turn issues the detainer and interviews Juan, without the presence of counsel. Juan is determined to be an undocumented immigrant, and the removal process is started.
What happens after the hold is issued? Jail deputies in central booking frequently refuse to accept cash bonds, incorrectly advising family members that they cannot post bond due to the ICE hold. Judges sometimes misunderstand the law on ICE holds as well, everyone operating under a false assumption that an ICE hold is indefinite and infallible.
There is a way to get your client out expeditiously. The bond can be posted, and in many, although certainly not all situations, bond should be posted sooner rather than later. Once bond is paid, this triggers a 48-hour deadline by which ICE must take custody of the defendant. If ICE does not take custody within 48 hours, excluding weekends or holidays, the jail must release the defendant from their custody. There are literally no exceptions to this requirement.
Obtaining counsel immediately after the arrest stage is crucial. ICE generally transports unlawful immigrants to the Krome detention facility in Miami, where they will be held without bond. A faster, more economical approach is to begin advocating for your client pre-detention. ICE officers have the discretion to release a defendant on his own recognizance; counsel simply needs to give them the right reasons to justify doing it. With a congressional mandate to fill 37,000 beds nightly in detention centers across the country, be advised, it won’t be easy.
The federal government’s most cost-effective method of detecting unlawful aliens in the United States is the use of what are commonly called “ICE holds.” These ICE holds, or detainers, are used to investigate, arrest, and eventually remove suspected illegal aliens from the United States. The process is cost-effective because the real work is basically outsourced to local police departments and county jails across the country.
How does this work? Brace yourself for acronyms. The U.S. Immigration and Customs Enforcement (ICE) Bureau of Enforcement and Removal Operations (ERO) is in charge of removing unlawful aliens. ICE ERO assigns officers to the Criminal Alien Program (CAP) to coordinate with local jails in support of their objective. In Hillsborough County, the CAP office is in downtown Tampa.
Ostensibly, the federal government’s objective is to detain and remove “criminals who pose a serious threat to public safety.” The practical analysis of who qualifies as a “criminal” is questionable. A study by Syracuse University found that in 2012, 48 percent of individuals targeted by immigration detainers nationwide had no prior criminal conviction.
A common hypothetical? Officer Farva arrests Juan for having no valid driver’s license, a traffic misdemeanor. Juan is booked and processed into Orient Road Jail and is issued a standard $250 bond. Because Juan doesn’t have a social security number, a jail employee notifies a Tampa ERO CAP officer, who in turn issues the detainer and interviews Juan, without the presence of counsel. Juan is determined to be an undocumented immigrant, and the removal process is started.
What happens after the hold is issued? Jail deputies in central booking frequently refuse to accept cash bonds, incorrectly advising family members that they cannot post bond due to the ICE hold. Judges sometimes misunderstand the law on ICE holds as well, everyone operating under a false assumption that an ICE hold is indefinite and infallible.
There is a way to get your client out expeditiously. The bond can be posted, and in many, although certainly not all situations, bond should be posted sooner rather than later. Once bond is paid, this triggers a 48-hour deadline by which ICE must take custody of the defendant. If ICE does not take custody within 48 hours, excluding weekends or holidays, the jail must release the defendant from their custody. There are literally no exceptions to this requirement.
Obtaining counsel immediately after the arrest stage is crucial. ICE generally transports unlawful immigrants to the Krome detention facility in Miami, where they will be held without bond. A faster, more economical approach is to begin advocating for your client pre-detention. ICE officers have the discretion to release a defendant on his own recognizance; counsel simply needs to give them the right reasons to justify doing it. With a congressional mandate to fill 37,000 beds nightly in detention centers across the country, be advised, it won’t be easy.
Friday, April 4, 2014
Health Care Law: Telemedicine Legal Considerations For Florida Providers
By Nathaniel Lacktman
Many physicians and health care businesses in Florida are developing telemedicine practices to treat patients located in other states. The governing law for practicing medicine is in the state where the patient is located, not where the physician is located. Therefore, a physician based in Florida who provides telemedicine services to a patient located in Indiana must be licensed to practice medicine in Indiana (or meet an exception to licensure).
However, securing proper licensure is not the only consideration for a multistate telemedicine practice. Essential legal and regulatory considerations include: 1) business models (peer-to-peer, direct-to-patient, remote monitoring, mHealth, etc.); 2) state fraud and abuse laws; 3) professional compensation arrangements (contractor, employee, investor, corporate practice of medicine, etc.); 4) special consent and recordkeeping rules for telemedicine; 5) medical record privacy and security; 6) credentialing; and 7) payor reimbursement.
The challenge with these issues is that a successful telemedicine business typically operates across multiple states and is subject to the state laws of all the places where the patients are located and it does business. Although health care providers are no stranger to high levels of regulation, business models and contractual arrangements that work in Florida will not necessarily work in other states. Telemedicine practices must be sensitive to, and aware of, the need for business arrangements capable of satisfying health care regulations across multiple states.
Take, for example, scope of practice. This issue is important because it dictates what services the physician may offer patients under the telemedicine arrangement. Whether or not a physician, even if fully licensed, may provide certain services via telemedicine is an issue of scope of practice governed by state law (e.g., conduct a patient consult, render a diagnosis, make a treatment recommendation, issue a remote prescription). Some states (e.g., Texas, Louisiana) require the telemedicine physician to have performed at least one in-person physical examination prior to utilizing telemedicine, whereas other states (e.g., Mississippi, North Carolina) explicitly permit a physician to establish a valid physician-patient relationship entirely via telemedicine.
Unlike many states, Florida has no statutes or regulations specific to telemedicine practice. The closest relative is a decade-old regulation (F.A.C. 64B8-9.014) designed to restrict unscrupulous Internet pharmacies from dispensing drugs online to patients without a valid physician-patient relationship. Recently, telemedicine legislation has been discussed in the Florida Legislature, but nothing has yet been enacted. The absence of a telemedicine-specific set of laws or rules can act as a barrier to widespread telemedicine availability because the lack of clear guidance creates uncertainty and risk for telemedicine providers looking to do business in Florida but unfamiliar with the acceptable practices and standards of care.
The pace of telemedicine technology and the vision of leading health care providers have outpaced state law and policy. With an appreciation for, and understanding of, the multidimensional (and multistate) nature of telemedicine, providers have fantastic opportunities to develop successful telemedicine practices.
Many physicians and health care businesses in Florida are developing telemedicine practices to treat patients located in other states. The governing law for practicing medicine is in the state where the patient is located, not where the physician is located. Therefore, a physician based in Florida who provides telemedicine services to a patient located in Indiana must be licensed to practice medicine in Indiana (or meet an exception to licensure).
However, securing proper licensure is not the only consideration for a multistate telemedicine practice. Essential legal and regulatory considerations include: 1) business models (peer-to-peer, direct-to-patient, remote monitoring, mHealth, etc.); 2) state fraud and abuse laws; 3) professional compensation arrangements (contractor, employee, investor, corporate practice of medicine, etc.); 4) special consent and recordkeeping rules for telemedicine; 5) medical record privacy and security; 6) credentialing; and 7) payor reimbursement.
The challenge with these issues is that a successful telemedicine business typically operates across multiple states and is subject to the state laws of all the places where the patients are located and it does business. Although health care providers are no stranger to high levels of regulation, business models and contractual arrangements that work in Florida will not necessarily work in other states. Telemedicine practices must be sensitive to, and aware of, the need for business arrangements capable of satisfying health care regulations across multiple states.
Take, for example, scope of practice. This issue is important because it dictates what services the physician may offer patients under the telemedicine arrangement. Whether or not a physician, even if fully licensed, may provide certain services via telemedicine is an issue of scope of practice governed by state law (e.g., conduct a patient consult, render a diagnosis, make a treatment recommendation, issue a remote prescription). Some states (e.g., Texas, Louisiana) require the telemedicine physician to have performed at least one in-person physical examination prior to utilizing telemedicine, whereas other states (e.g., Mississippi, North Carolina) explicitly permit a physician to establish a valid physician-patient relationship entirely via telemedicine.
Unlike many states, Florida has no statutes or regulations specific to telemedicine practice. The closest relative is a decade-old regulation (F.A.C. 64B8-9.014) designed to restrict unscrupulous Internet pharmacies from dispensing drugs online to patients without a valid physician-patient relationship. Recently, telemedicine legislation has been discussed in the Florida Legislature, but nothing has yet been enacted. The absence of a telemedicine-specific set of laws or rules can act as a barrier to widespread telemedicine availability because the lack of clear guidance creates uncertainty and risk for telemedicine providers looking to do business in Florida but unfamiliar with the acceptable practices and standards of care.
The pace of telemedicine technology and the vision of leading health care providers have outpaced state law and policy. With an appreciation for, and understanding of, the multidimensional (and multistate) nature of telemedicine, providers have fantastic opportunities to develop successful telemedicine practices.
Tuesday, April 1, 2014
Eminent Domain: Evaluating Land Grabs In Koontz And Hillcrest
By Lisa Lee
In March 2014, the Eleventh Circuit Court of Appeals will hear oral arguments concerning Pasco County’s alleged “land grab” in Hillcrest Property, LLP v. Pasco County. In Hillcrest, Pasco County passed an ordinance requiring only development permit-seeking landowners to deed a portion of land to Pasco County for future roadway development without compensation. On the other hand, for non-permit-seeking landowners, Pasco County offered just compensation for the landowner’s property. Furthermore, permit-seeking landowners demanding compensation or seeking relief from the requirements solely bore the burden of proof before a review committee appointed by Pasco County.
Because the petitioner failed to assert a federal takings claim, the U.S. District Court, Middle District of Florida, evaluated Hillcrest under a substantive due process analysis. The court looked to Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994) (“Nollan/Dolan”), the two United States Supreme Court cases requiring development exactions to: (i) have an “essential nexus” between the permit condition and the legitimate state interest; and (ii) maintain a “rough proportionality” between the permit condition and the proposed development impacts. From Nollan/Dolan, the court reasoned that the Takings Clause affirmed “a right in the citizen that private property cannot be taken for public use without just compensation.”
Ultimately, the court held that the ordinance failed rational basis review. Hillcrest found that Pasco County exploited its police power to avoid paying just compensation to only permit-seeking landowners. Furthermore, under the ordinance’s procedures, the landowner bore the burden of proving a lack of the Nollan/Dolan requirements. Essentially, the landowner must undergo inverse condemnation proceedings, which “is not on equal footing with an owner whose land is ‘taken’ through formal condemnation proceedings.”
Nollan/Dolan’s application to development permit grants may have been affirmed by Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586 (2013). In Koontz, a landowner similarly sought a development permit to build on his property and offered to deed a conservation easement to the district to offset the proposed development’s environmental impact. The district refused and made further demands, which were rejected by the landowner. Subsequently, the landowner filed suit in state court, claiming that the district’s refusal to grant a development permit amounted to an unconstitutional taking.
The United States Supreme Court held that a government agency’s demand for property from a development permit applicant must satisfy the Nollan/Dolan requirements, even when it denies the permit. The court failed to distinguish between the approval or the denial of a permit, noting that the government would be able to simply evade the limitations with mere rephrasing of the conditions required for permit approval. Also, the government failed to give at least one plausible alternative to the dedication of land.
Koontz suggests that unreasonable demands for property in exchange for development permits are considered takings if they fail to meet the Nollan/Dolan standards for exactions. The Eleventh Circuit may find Koontz persuasive as it, too, applies Nollan/Dolan to development permit grants.
In March 2014, the Eleventh Circuit Court of Appeals will hear oral arguments concerning Pasco County’s alleged “land grab” in Hillcrest Property, LLP v. Pasco County. In Hillcrest, Pasco County passed an ordinance requiring only development permit-seeking landowners to deed a portion of land to Pasco County for future roadway development without compensation. On the other hand, for non-permit-seeking landowners, Pasco County offered just compensation for the landowner’s property. Furthermore, permit-seeking landowners demanding compensation or seeking relief from the requirements solely bore the burden of proof before a review committee appointed by Pasco County.
Because the petitioner failed to assert a federal takings claim, the U.S. District Court, Middle District of Florida, evaluated Hillcrest under a substantive due process analysis. The court looked to Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994) (“Nollan/Dolan”), the two United States Supreme Court cases requiring development exactions to: (i) have an “essential nexus” between the permit condition and the legitimate state interest; and (ii) maintain a “rough proportionality” between the permit condition and the proposed development impacts. From Nollan/Dolan, the court reasoned that the Takings Clause affirmed “a right in the citizen that private property cannot be taken for public use without just compensation.”
Ultimately, the court held that the ordinance failed rational basis review. Hillcrest found that Pasco County exploited its police power to avoid paying just compensation to only permit-seeking landowners. Furthermore, under the ordinance’s procedures, the landowner bore the burden of proving a lack of the Nollan/Dolan requirements. Essentially, the landowner must undergo inverse condemnation proceedings, which “is not on equal footing with an owner whose land is ‘taken’ through formal condemnation proceedings.”
Nollan/Dolan’s application to development permit grants may have been affirmed by Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586 (2013). In Koontz, a landowner similarly sought a development permit to build on his property and offered to deed a conservation easement to the district to offset the proposed development’s environmental impact. The district refused and made further demands, which were rejected by the landowner. Subsequently, the landowner filed suit in state court, claiming that the district’s refusal to grant a development permit amounted to an unconstitutional taking.
The United States Supreme Court held that a government agency’s demand for property from a development permit applicant must satisfy the Nollan/Dolan requirements, even when it denies the permit. The court failed to distinguish between the approval or the denial of a permit, noting that the government would be able to simply evade the limitations with mere rephrasing of the conditions required for permit approval. Also, the government failed to give at least one plausible alternative to the dedication of land.
Koontz suggests that unreasonable demands for property in exchange for development permits are considered takings if they fail to meet the Nollan/Dolan standards for exactions. The Eleventh Circuit may find Koontz persuasive as it, too, applies Nollan/Dolan to development permit grants.
BP Case Update: Fifth Circuit Appears Oil-Resistant
By Anthony J. Garcia
In early March, the United States Court of Appeals for the Fifth Circuit issued a strong-handed, 2-1 opinion rejecting British Petroleum’s (BP) cries of foul play and mandated that the claims administrator, Patrick Juneau, resume payment of proper business economic loss claims.
The back-story: Eleven lives were lost and many were negatively affected by what some are calling the greatest unnatural disaster of our time, BP’s Deepwater Horizon oil spill of April 2010. Awareness of the spill deterred those planning to visit our Gulf Coast states. When tourism dwindled, the Gulf Coast’s economy suffered greatly while creating a ripple effect that spread well beyond the beaches. Over the course of two years, BP and the plaintiff’s steering committee negotiated a class settlement that would recognize losses based on proximity to the Gulf as well as detailed financial analysis. Shortly after the agreement was ratified by the Eastern District of Louisiana, claims were processed and paid accordingly. BP then began the onslaught of objections, claiming unfairness, unconstitutionality, and fraud, to name a few.
The Fifth Circuit entertained BP’s arguments that the oil giant was being treated unfairly, the causation-related settlement terms were not properly followed, and claimant’s questionable accounting techniques were distorting actual business losses. In re: Deepwater Horizon, Nos. 13-30315 and 13-30329, (5th Cir. 2014).
The heavy-handed, wit-filled opinion in March 2014 affirmed the lower court’s ruling of December 2013 and vacated the injunction that prevented thousands of worthy claimants from being processed and compensated. Id. BP relied heavily on a footnote buried in the causation section of the 1,033-page agreement. “Wielding this footnote, BP seeks to dismantle the complex framework of exemptions, presumptions and formulas that allow business claimants to submit evidence of their income and expenses before and after the BP-caused disaster,” Judge Leslie H. Southwick wrote. Id. at 9. There likely is a more nuanced manner in which BP would characterize its argument, but this fairly captures its essence. Id.
Despite negative ad campaigns in major newspapers, atomic briefings at every trench, and a viciously accusatory tone, BP is bound to the agreement it negotiated and signed. “There is nothing fundamentally unreasonable about what BP accepted but now wishes it had not,” Southwick wrote. Id. at 11.
At the time of this publication, there are doubts that BP will accept this ruling. It has, however, achieved success in shaming many for filing and deterred those who have not. It has also persuaded the court to revise accounting procedures to require a matching of revenues to expenses. This may prevent the occasional fraudulent or undeserving claim from payment but will undoubtedly call for more detailed analysis, less favorable compensation for select industries, and increased accountant involvement. Although the filing deadline at publication time was April 2014, expect an extension into mid- to late 2014.
Bottom line: Oil claims can be a bit messy, but there is no better time for a Gulf Coast business to be evaluated.
In early March, the United States Court of Appeals for the Fifth Circuit issued a strong-handed, 2-1 opinion rejecting British Petroleum’s (BP) cries of foul play and mandated that the claims administrator, Patrick Juneau, resume payment of proper business economic loss claims.
The back-story: Eleven lives were lost and many were negatively affected by what some are calling the greatest unnatural disaster of our time, BP’s Deepwater Horizon oil spill of April 2010. Awareness of the spill deterred those planning to visit our Gulf Coast states. When tourism dwindled, the Gulf Coast’s economy suffered greatly while creating a ripple effect that spread well beyond the beaches. Over the course of two years, BP and the plaintiff’s steering committee negotiated a class settlement that would recognize losses based on proximity to the Gulf as well as detailed financial analysis. Shortly after the agreement was ratified by the Eastern District of Louisiana, claims were processed and paid accordingly. BP then began the onslaught of objections, claiming unfairness, unconstitutionality, and fraud, to name a few.
The Fifth Circuit entertained BP’s arguments that the oil giant was being treated unfairly, the causation-related settlement terms were not properly followed, and claimant’s questionable accounting techniques were distorting actual business losses. In re: Deepwater Horizon, Nos. 13-30315 and 13-30329, (5th Cir. 2014).
The heavy-handed, wit-filled opinion in March 2014 affirmed the lower court’s ruling of December 2013 and vacated the injunction that prevented thousands of worthy claimants from being processed and compensated. Id. BP relied heavily on a footnote buried in the causation section of the 1,033-page agreement. “Wielding this footnote, BP seeks to dismantle the complex framework of exemptions, presumptions and formulas that allow business claimants to submit evidence of their income and expenses before and after the BP-caused disaster,” Judge Leslie H. Southwick wrote. Id. at 9. There likely is a more nuanced manner in which BP would characterize its argument, but this fairly captures its essence. Id.
Despite negative ad campaigns in major newspapers, atomic briefings at every trench, and a viciously accusatory tone, BP is bound to the agreement it negotiated and signed. “There is nothing fundamentally unreasonable about what BP accepted but now wishes it had not,” Southwick wrote. Id. at 11.
At the time of this publication, there are doubts that BP will accept this ruling. It has, however, achieved success in shaming many for filing and deterred those who have not. It has also persuaded the court to revise accounting procedures to require a matching of revenues to expenses. This may prevent the occasional fraudulent or undeserving claim from payment but will undoubtedly call for more detailed analysis, less favorable compensation for select industries, and increased accountant involvement. Although the filing deadline at publication time was April 2014, expect an extension into mid- to late 2014.
Bottom line: Oil claims can be a bit messy, but there is no better time for a Gulf Coast business to be evaluated.
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