A recent article in the Huffington Post highlighted the many benefits of engaging in mediation and arbitration, especially in the entertainment and sports industry. Mediation and arbitration often referred to as alternative dispute resolution (ADR) are increasingly being used in entertainment law disputes, rather than litigation. Litigation is too costly to be effective in these cases and ADR helps salvage relationships in the entertainment industry that litigation would otherwise threaten.
Although arbitration can take different forms, it generally involves an arbitrator rendering a final and binding decision at the end of a hearing. Mediation on the other hand involves the parties meeting with a neutral third-party who assists them in negotiating their differences.
Parties often see the many benefits to engaging in ADR. In arbitration, the rules of evidence are much more relaxed, permitting more evidence to be admitted. This allows the parties to explore all facets of their argument. Most often the arbitrator specializes in the particular area of law which is at issue, which many feel leads to a fairer, more nuanced decision compared to litigation. Further, arbitration provides a level of privacy not found in traditional litigation. Cases are not heard in open court and transcripts are not made a part of a public record.
Mediation, on the other hand, focuses on interests, rather than the positions of the parties thus creating the possibility of a win-win result. A judge or jury’s decision could be potentially devastating to one party. Mediation avoids this by allowing parties to fashion their own outcome. Mediation provides an environment which nurtures the collaborative relationships necessary to the entertainment and sports industry that might otherwise be destroyed in the adversarial litigation context.
In the entertainment industry, parties may have on-going relationships which need to be preserved and which might be harmed in litigation, for example an artist and record label, or an athlete and the league. The reality is arbitration and mediation clauses are a part of many entertainment and sports contracts today. For instance, an arbitrator recently ruled the NFL was not required to remove Minnesota Vikings running back Adrian Peterson from the exempt list. Meanwhile a private arbitrator has just rendered an award against Harvey and Bob Weinstein in a $75 million-plus lawsuit they filed against Time Warner Inc.'s Warner Bros.
Through mediation and arbitration, the likelihood is far greater that an acceptable agreement to both sides can be reached because the parties are encouraged to participate in the resolution process. Moreover, given the cost, time, and uncertainty of litigation, ADR is an attractive way for parties to resolve their disputes.
See the original article here :http://www.huffingtonpost.com/stacy-slotnick/blue-laws-a-black-mark-on_b_6177868.html
In an address to the nation on November 20th, 2014, President Obama announced he would take executive action to allow up to five million undocumented immigrants to remain in the country and work legally without threat of deportation. This comes following months of congressional gridlock where no action was taken in the Republican controlled House of Representatives.
The President’s plan includes the following:
- Provide border patrol agents with additional resources so that they can stem the flow of illegal crossings, and speed the return of those who do cross over.
- Make it easier and faster for high-skilled immigrants, graduates, and entrepreneurs to stay and contribute to our economy.
- Take steps to deal responsibly with the millions of undocumented immigrants who already live in the country.
The President’s plan focuses essentially on the third point; seeking to deport violent criminals rather than children or families who merely crossed over illegally. The President announced that:
“If you’ve been in America for more than five years; if you have children who are American citizens or legal residents; if you register, pass a criminal background check, and you’re willing to pay your fair share of taxes – you’ll be able to apply to stay in this country temporarily, without fear of deportation. You can come out of the shadows and get right with the law.”
Despite the House’s failure to take up the issue itself, Speaker John Boehner called the President’s action “damaging the presidency itself” saying “the president has chosen to deliberately sabotage any chance of enacting bipartisan reforms that he claims to seek.” Boehner vowed that the House would take action to counter the President’s actions, but declined specifics.
The President’s plan places republicans in a delicate position. They feel compelled to condemn the Presidential executive action but must be careful not to damage the party’s standing with Latino voters, who comprise the nation’s fastest growing minority. Thus, Republicans have focused their anger on the President’s so called “executive amnesty.” Many in the party are calling this use of executive action unconstitutional, but feel impeachment or a government shutdown over the issue would not be productive. They seek to find ways to cut off funding for the President’s executive action without shutting down the government.
Congressional Democrats on the other hand were largely united behind the President. However, they agree that congress must ultimately take up the issue. Senate Majority Leader Harry Reid stated “President Obama is doing what he can within his well-established constitutional authority, but nothing replaces Congress acting on comprehensive immigration reform”.
In November’s mid-term elections, republicans took control of the Senate, and expanded their majority, but those newly elected members will not take office until January. Will Congress take up the issue in the lame-duck session? Or will they wait till next year? Republicans are angry that the President acted without them, but they failed to act for months when they had the opportunity to do so.
Read the full story here: http://www.nytimes.com/2014/11/22/us/republicans-immigration-obama.html
Read the full transcript and watch the speech here: http://www.addictinginfo.org/2014/11/20/full-transcript-of-president-obamas-immigration-actions-video/
Marley Natural Posted on 18 Nov 17:15 , 0 comments
The Marley family estate announced today the creation of “Marley Natural”, a global cannabis brand that will offer “heirloom Jamaican cannabis strains inspired by those Bob Marley enjoyed.” The brand, will also produce and market cannabis and hemp-infused topicals such as sun-repair creams and lotions containing Jamaican botanicals, the family said in a statement.
Cedella Marley, head of the family estate, said her father would have been happy to see the growing recognition and acceptance of marijuana worldwide. Bob Marley who brought reggae mainstream, embraced marijuana as a converted Rastafarian and advocated legalization of the plant, which he called “herb.” “It make you stimulate your mind, and make you sit down and meditate,” he once told an interviewer. “Instead a get foolish, you sit down and you can meditate and be someone. Rum teach to you be a drunkard, and herb teach you to be someone.”
The venture has received multi-million dollar backing from Privateer Holdings, a Seattle-based private equity firm focused on legal cannabis. Its portfolio includes Leafly.com, a leading consumer site that works much like Yelp, listing and reviewing cannabis dispensaries and marijuana strains. “What appealed to us was the global reach of the Marley brand,” said Brendan Kennedy, chief executive of Privateer.
The legal cannabis industry in the U.S. is estimated to be worth over $2 billion, but no brand has emerged as a clear national leader. Cannabis is only available in 23 states and Washington D.C., as federal law still considers it illegal. As such, creating a national distribution system for products is constrained by laws preventing cross-state transportation. The company hopes to capitalize on Marley’s 74 million Facebook fans around the world.
See full story here: http://www.latimes.com/la-fi-20141118-bob-marley-marijuana-story.html
Pennsylvania Supreme Court Justice Seamus McCaffery announced this week that he will be retiring from the bench. The court had previously suspended him amid allegations that he had sent or received hundreds of sexually explicit and pornographic emails from 2008 to 2012 to members of the Attorney General’s office. The scandal erupted last month when Attorney General Kathleen Kane, in response to requests from news organizations, released the names of the men who sent or received such emails.
McCaffery, who had been in a long standing feud with Chief Justice Ron Castille, accused the chief justice of waging a “relentless crusade to destroy his career and reputation.” Prior to his resignation, Judge McCaffery had vowed that he would ultimately be “cleared of any wrongdoing and returned to the bench soon.”
The suspension of Judge McCaffery came after allegation of extortion by another justice, J. Michael Eakin. In a complaint filed with the state’s Judicial Conduct Board on October 17, 2014, Judge Eakin said McCaffery had urged him to get Castille to back down on his public statements about the porn. McCaffery allegedly said that he was “not going down alone” and that he would reveal explicit and racist emails Eakin received, if Eakin did not agree to get Castille to back down.
Pursuant to the order suspending McCaffery, the Court had asked the Judicial Conduct Board to determine within 30 days whether there was “probable cause to file formal misconduct charges against Justice McCaffery.” However, given that the judge has now retired and agreed not to seek senior judge status and not to again seek elective judicial office, the Judicial Conduct Board has dismissed all of its investigations into McCaffery’s conduct.
http://blogs.wsj.com/law/2014/10/27/pennsylvania-high-court-justice-resigns-amid-email-scandal/
http://www.philly.com/philly/blogs/cityhall/Seamus-McCaffery-retiring-from-PA-Supreme-Court.html
Today, November 10, 2014, President Obama asked the FCC to protect net neutrality as the agency writes new regulations on internet traffic. Obama asked that the “strongest possible rules” be implemented to prohibit deals which would require content providers to pay Internet companies to ensure smooth delivery of traffic. Instead of the current model, Obama wants the internet to be regulated as a public utility, under Title II of the Telecommunications Act, similar to the way telephones are now regulated.
Of the more than 1 million comments the FCC received on the issue, more than 99 percent favor net neutrality, reports MSNBC. Many including the President believe that abandoning net neutrality and allowing internet fast lanes to go forward, would stifle innovation and would prevent new businesses from competing with those already established in the industry. “Ever since the internet was created, it’s been organized around basic principles of openness, fairness, and freedom…net neutrality has unleashed the power of the internet and given innovators the chance to thrive. Abandoning these principles would threaten to end the internet as we know it” said the President in a statement put out by the Whitehouse today.
https://twitter.com/WhiteHouse/status/531813644695531520
Read the President’s full statement on the Whitehouse website: http://www.whitehouse.gov/net-neutrality
In a lawsuit filed last week Monday, Facebook claims DLA Piper, and three other law firms, “conspired to file and prosecute a fraudulent lawsuit … based on fabricated evidence, for the purpose of extorting a lucrative and unwarranted settlement.” This new suit stems from a case in 2010, when Paul Ceglia filed suit, claiming a majority ownership interest in Facebook Inc. based on documentation since determined by a federal court to have been faked. DLA Piper, and the other firms represented Ceglia in the prior litigation.
DLA Piper says Facebook’s claims are without merit and merely a tactic to intimidate lawyers from bringing litigation against Facebook. DLA Piper further claims it was only involved in the case for a few months, however Facebook points to the fact that it stayed in the litigation after Kasowitz, Benson, Torres & Friedman discovered that the document on which Ceglia’s suit was based was a fraud and withdrew.
Facebook seeks reimbursement of the legal fees expended in defending the Ceglia litigation, as well as unspecified punitive damages. A criminal case against Ceglia is ongoing.
Earlier this year, the FCC announced a proposed rule change to the way internet traffic is regulated. In response to this proposed change to net neutrality, the FCC received over a million comments over a five-month period. This is the largest response the FCC has received in such a short period of time, and the second largest overall, ever. The only issue to receive more comments was after Janet Jackson’s Super Bowl wardrobe malfunction in 2004. The majority of comments received are staunchly opposed to the new policy. Now President Obama has weighed in and he is also uncomfortable with the FCC’s plan.
The FCC is deciding whether to allow telecommunication companies, like Verizon and Comcast, to strike deals with content providers, such as Netflix or Amazon, for faster delivery of their products. The President, speaking at the U.S. Africa Business Forum on August 4, 2014, expressed that he’s uncomfortable with the idea of allowing Internet providers to sell fast-lane access to content companies. The President said:
“Well, there are two issues — net neutrality — in the United States, one of the issues around net neutrality is whether you are creating different rates or charges for different content providers. That’s the big controversy here.You have big, wealthy media companies who might be willing to pay more but then also charge more for more spectrum, more bandwidth on the Internet so they can stream movies faster or what have you.
And I personally — the position of my administration, as well as I think a lot of companies here is you don’t want to start getting a differentiation in how accessible the Internet is to various users. You want to leave it open so that the next Google or the next Facebook can succeed.”
President Obama’s statement highlights the problem many see with this policy, start-ups will not be able to compete with established businesses if they have to pay to compete.
The policy was championed by FCC Chairman Tom Wheeler, who was appointed by Obama. But the FCC has another option. It can classify internet as a telecommunication service. In so doing, regulators could prohibit phone and cable companies from engaging in unjust or unreasonable discrimination against content. Currently, internet is classified as an information service, a decision made during George W. Bush’s administration and which limits the FCC’s ability to protect consumers and smaller Internet companies and start-ups.
Stay tuned, we will continue to update you on this important issue.
Read more here: http://www.nytimes.com/2014/08/14/opinion/president-obama-no-internet-fast-lanes.html
With the Recent decision the U.S. Court of Appeals for the Ninth Circuit affirming the right of gays and lesbians to marry (in cases from Nevada and Idaho), the group defending those bans in court has come forward with a last ditch effort to challenge that ruling.
In a petition filed last Monday, October 13, 2014, the Coalition for Protection of Marriage, who has been defending the Nevada ban on gay marriage, questioned the neutrality of the panel assigned to hear the case. Arguments for the Courts of Appeals are generally heard before a randomly selected three judge panel from the active judges in that Circuit. The petition argues that appeals judges Berzon and Reinhardt have served on panels deciding gay-rights cases in disproportionate numbers. According to the petition, Berzon has served on appellate panels in five of eleven cases involving federal constitutional issues of gay rights, while Reinhardt has served on four.
Forty-five judges are currently listed as active judges in the 9th Circuit, eighteen of whom have never served on an appeals panel in a gay-rights case, the petition says. “Statistical analysis demonstrates that the improbability of such occurring randomly is not just significant but overwhelming…Thus, the odds are 441-to-1 against what we observe with the relevant cases.” The petition argues further that "even without the aid of professional statisticians, a reasonable person will immediately sense that something is amiss when one judge out of more than thirty is assigned over a four and one-half year period to five of this circuit’s eleven cases involving the federal constitutional rights of gay men and lesbians, another to four of those cases, and both of them to the momentous ‘gay marriage’ cases.”
The Coalition apparently concedes that the Ninth Circuit has “a neutral process” for assigning judges to panels; it thus, appears unlikely they will be successful in their effort. The Supreme Court does not seem eager to get involved either, given their denials in all same-sex marriage cases that were filed this term.
See: http://www.scotusblog.com/2014/10/ninth-circuits-neutrality-questioned-on-gay-rights/
and case filing here: http://sblog.s3.amazonaws.com/wp-content/uploads/2014/10/Nevada-marriage-en-banc-pet.-by-CPM-10-13-14.pdf
In January 2013, the United States District Court for the District of Columbia entered civil contempt sanctions against Russia, the Russian Ministry of Culture and Mass Communication (the "Ministry"), the Russian State Library ("RSL"), and the Russian State Military Archive ("RSMA") for failure to comply with a previous order of the Court.
The case is Agudas Chasidei Chabad of United States v. Russian Federation, Case No. 1:05-cv-1548 (D.D.C. 2013).
Case History
In 2004, Chabad brought and action seeking return of religious books, artifacts and other materials concerning the cultural heritage of its forbearers, which fell into the defendants’ hands in the early 20th century. See Agudas Chasidei Chabad of U.S. v. Russian Fed'n (Chabad III), 798 F. Supp. 2d 260, 263 (D.D.C. 2011). In 2009, Russia’s lawyers informed the court that it would no longer be participating in the case, arguing that the Court “lacked authority to adjudicate rights in property that in most cases always has been located in the Russian Federation…” Statement of Defs., June 26, 2009, ECF No. 71. A year later, the court entered a default judgment in favor of Chabad, ordering the defendants to surrender the complete collection to the United States Embassy in Moscow or to the duly appointed representatives of Chabad. The defendants never complied with that order.
Chabad then moved for contempt sanctions, seeking the entry of a monetary penalty for every day that the defendants continue to disobey the Court's Order. In granting Chabad’s motion, the Court noted that it had the authority to issue sanctions under the Foreign Sovereign Immunities Act (“FSIA”). Because the defendants had failed to take any steps necessary towards compliance with the Court's order, the Court concluded that Chabad has demonstrated defendants’ non-compliance to a reasonable certainty.
Analysis
In determining that it had authority to issue sanctions, the court looked to the inherent contempt power of federal courts[1]. The court also relied on FG Hemisphere Assocs., LLC v. Democratic Republic of Congo, 637 F.3d 373, 377-78 (D.C. Cir. 2011) in which the D.C. Circuit affirmed the issuance of sanctions against a foreign state for refusing to comply with a Court's discovery orders. The United submitted, briefed and argued that sanctions were not authorized under FSIA. But the court relied on FG Hemishpere to conclude that they were authorized.
In order for sanctions to be warranted, it must generally be shown that the putative contemnor violated an order. Here, the court previously concluded that defendants’ non-compliance with its 2010 Order has been demonstrated ‘to a reasonable certainty,’ as required to warrant the entry of civil contempt sanctions, a point which the United States conceded. In attempting to prevent the award of sanctions, the United States argued that such an award could damage its ability to conduct diplomatic relations. The court declined to follow this, noting that the U.S. interest was not reasonably and specifically explained.
In the end, the court entered contempt sanctions against all defendants in the amount of $50,000 per day until they comply with the 2010 Order. Compare that to the sanction imposed on the Democratic Republic of Congo, a much smaller and weaker economy: $5,000 per week, doubling every four weeks until reaching a maximum of $80,000 per week.
[1] A State cannot claim sovereign immunity in cases involving commercial contracts.
A recent ruling out of the U.S. Court of Appeals for the D.C. Circuit could change the way that companies conduct internal investigations. In the case of In re: Kellogg Brown & Root, the district court ruled that documents created in the course of an internal investigation were not covered by the attorney-client privilege. That decision was then vacated by the Court of Appeals.
In the underlying suit, Harry Barko, Jr. brought a qui tam action against Kellogg Brown & Root (KBR) under the false claims act, alleging that KBR had overcharged the U.S. Army. During discovery, Barko sought documents regarding KBR’s compliance with government contracting regulations. KBR produced some documents reflecting employees’ tips to its ethics hotline, but it withheld the documents created during its investigation of those tips asserting attorney-client privilege over them. The district court ruled that those investigation documents were not protected by privilege. Dispositive to the court’s analysis was that federal regulations required KBR to implement a system of internal compliance controls and to timely report any misconduct to the government. The court thus, concluded that the documents were created “pursuant to a compliance investigation required by regulatory law” and not “for the purpose of obtaining legal advice.”
KBR’s investigation was conducted, in part, by non-attorney employees, and those interviewed for the investigation were not told that the investigation’s purpose was obtaining legal advice. Further, while KBR utilized its in-house counsel for the investigation, it did not employ outside counsel. The court noted all of these factors in determining that the investigation was not subject to attorney-client privilege.
Here, the district court seemingly applied a but-for test, meaning that communications are privileged if, and only if, the communication was madesolely for the purpose of obtaining legal advice. The circuit court was uncomfortable with this rigid standard, instead preferring a primary purpose test. Under the primary purpose standard, a communication is privileged so long as its primary purpose was to seek or give legal advice (even if it had other purposes as well). In the modern business world, most communications serve multiple purposes and given that, the circuit court felt that the but-for test was too restrictive.
In a ruling delivered June 27, 2014, the Circuit Court concluded that the district court’s privilege ruling constituted clear legal error, and vacated the ruling. Despite this ruling, companies should still be careful in conducting their investigations to ensure privilege is protected. The major takeaways from this decision:
· Have general counsel direct the investigation
· Have an attorney conduct all employee interviews
· Before all interviews, clarify that the purpose is for the company to gather facts to obtain legal advice
· Engage outside counsel. Because outside counsel’s only function is legal advice, the primary purpose of any communication will necessarily be obtaining legal advice.
See the full article on this decision here: http://digital.todaysgeneralcounsel.com/Vizion5/viewer.aspx?issueID=26&pageID=54