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Month: March, 2016
Early Sullivan Obtains Summary Adjudication, Near Immediate Case Settlement for Nursing Home Operator
Category: News, Results | Thursday, March 31st, 2016 | Comments Off on Early Sullivan Obtains Summary Adjudication, Near Immediate Case Settlement for Nursing Home Operator
The firm represented one of the leading nursing home operators in California against 18 causes of action arising from alleged financial malfeasance and investor-related fraud in Remba v. Preimesberger, LASC Case No. BC575724, Los Angeles Superior Court, Hon. Gregory Keosian. We obtained summary adjudication on behalf of our client on 17 of the 18 causes of action, which led to near immediate settlement of the case on favorable terms.
Bryan Sullivan and Stephen Ma to Speak at Digital Hollywood 2016
Category: Events, News | Thursday, March 31st, 2016 | Comments Off on Bryan Sullivan and Stephen Ma to Speak at Digital Hollywood 2016
Bryan Sullivan and Stephen Ma will appear as panelists on “CrowdFunding Update: Exploring Innovation in the Crowdfunding Film-TV-Start-up Process” at Digital Hollywood 2016. Digital Hollywood debuted in 1994 and is widely considered to be among the leading entertainment and technology conferences in the country, with over 15,000 top executives in the film, television, music, home video, cable, telecommunications and computer industries attending the various events each year.
Steve Ma Talks to Los Angeles Times About Sony, The Beatles, Michael Jackson and Sony/ATV Music Publishing
Category: News | Wednesday, March 16th, 2016 | Comments Off on Steve Ma Talks to Los Angeles Times About Sony, The Beatles, Michael Jackson and Sony/ATV Music Publishing
Stephen Ma was recently quoted in Ryan Faughnder’s Los Angeles Times article “Sony is betting on love for the Beatles lasting in a new $750 million deal,” which discusses the significance of Sony’s decision to buy the Michael Jackson estate’s remaining stake of their joint venture in Sony/ATV Music Publishing. According to Stephen, the massive music catalog, containing hits from some of the industry’s most renowned artists, is worth Sony’s steep investment.
“The crown jewel, really, is the Beatles catalog,” says Stephen. “It’s a big number, but it’s one of the most prized catalogs in the world.”
To view the full article, click here.
Erin Andrews Verdict Exposes Danger of Lax Privacy Policies – Law360
Category: News | Wednesday, March 9th, 2016 | Comments Off on Erin Andrews Verdict Exposes Danger of Lax Privacy Policies – Law360
Erin Andrews Verdict Exposes Danger Of Lax Privacy Policies
By Cara Salvatore
Law360, New York (March 8, 2016, 11:02 PM ET) — Erin Andrews’ $55 million jury verdict on Monday against a hotel where she was stalked and videotaped shows that hotels with weak privacy practices need to get their houses in order by locking in written guest-confidentiality policies, experts say.
A Nashville jury awarded sports reporter Andrews $55 million of the $75 million she had sought against the Nashville Marriott at Vanderbilt University, a franchise owned by West End Hotel Partners and operated by Windsor Capital Management. It attributed 49 percent of the fault to them and the other 51 percent to Andrews’ stalker Michael David Barrett, who in 2008 stalked and filmed at least 10 women at hotels all over the country, according to various testimony from both sides.
Andrews accused the hotel of giving out her room number to Barrett and granting his request to be placed in a room adjoining hers. Barrett told a conflicting story at trial about how he got her room number.
But privacy experts say that what was so strange about this case is that the hotel didn’t have written training materials regarding guest confidentiality.
Hotels need written guidelines telling employees exactly what to do if they get phone calls asking for guest information, said Stephen Ma of Early Sullivan Wright Gizer & McRae LLP.
“The world is filled with dangerous situations … and at some point, there’s got to be some sort of guidelines established internally to make sure that people staying with the hotel are protected,” he said. “I mean, what if this is a person who showed up with a gun or something?”
At trial, Andrews’ attorneys grilled staff on the hotel’s privacy policy and argued that its lax guidelines on guest information allowed Barrett to get Andrews’ room number.
Former front desk supervisor Naina Rivera-Keen testified that the Nashville Marriott had no written policies on giving out guest information.
“In terms of any written policies or procedures, they gave you nothing about privacy policy for guests, right?” Bruce Broillet, Andrews’ co-lead attorney, asked.
“Correct,” Rivera-Keen said.
And Marriott International reservations executive Renee Buonincontri testified that in 2008, if Barrett called and requested a room next to Andrews, it wouldn’t have been required for the hotel to call Andrews and make sure that was OK. Marriott International was dropped as a defendant months before trial.
All this shows how important a properly written privacy protocol is, according to Neil Ray of One LLP .
“[It] confirms to guests how hotels collect, use, and disclose personal data of their guests; how they ensure that that data is stored safely and securely; and … how they protect against any intrusion of seclusion that guests can reasonably expect in their hotel room,” Ray said.
This helps hotels avoid liability, given that the kind of information they may have on a guest goes far beyond their room number.
“Hotels have a lot of sensitive information about their guests. It could include vehicle information; sometimes you have to give your passport information,” he noted.
Andrews broke down repeatedly while testifying about the video, describing sleeplessness and depression, as well as then-employer ESPN’s refusal to allow her back on the air until she had agreed to be interviewed by Oprah. She said the Nashville Marriott never warned her that a man had requested the room next to hers.
“Did anybody from the hotel call you and tell you that a man called?” Andrews’ lawyer asked her at one point.
“No one ever called me. No one ever checked with me and told me that he asked to be put next to me,” she said.
Attorneys for the hotel owner and operator said in their closing that staffers were trained in privacy protocol and that the hotel was on guard against every foreseeable harm. But Barrett’s ends could never have been predicted, they said.
“It was not foreseeable that some criminal would go to the steps that he did,” said Marc Dedman of Spicer Rudstrom. “And by the way, he also did it to Ms. Andrews at [two other hotels]. He also did it to 10 or 15 women at other hotels around this country.”
He added: “That someone would take that and upload it to the Internet, is that foreseeable?”
It’s not clear what the franchise’s policies are these days or whether Marriott has added strict franchise requirements to the extensive franchisee standards it imposes in other areas. Representatives for Marriott were not immediately available for comment.
Even though Marriott International was dropped as a defendant, the case still should serve as a cautionary tale for franchisors, said Randy Sabett, vice chair of the privacy practice at Cooley LLP.
“You have a publicly known and a significantly valuable brand,” Sabett said. Companies like that “need to carefully negotiate those provisions in their agreements that deal with privacy, data breaches, security — all the way through the supply chain. Obviously, the brand tarnish you can never get away from. Emblazoned on the top of the building, I am sure, is a huge Marriott symbol.”
Franchisors take a risk when they lend their names to other corporations, Sabett said. But there are steps they can and should take to protect themselves. They may not be able to write into a contract that they can have recourse for “the brand hit you might take,” Sabett said, but they should be able to lock down compensation for costs incurred because of a breach or subsequent litigation.
And there are a lot of companies still out there that are more exposed than they may realize, he said.
“In the past couple of years, I have seen an increased sophistication on a number of levels with a variety of companies in all different types of business with respect to cybersecurity,” Sabett said. “Could there be companies that are behind? Sure. And we see them all the time.”
Andrews is represented by Bruce Broillet, Scott Carr, Tobin Lanzetta and Molly McKibben of Greene Broillet & Wheeler LLP and Randall Kinnard of Kinnard Clayton & Beveridge.
The hotel is represented by Aubrey Harwell III of Neal & Harwell and Brent Usery and Marc Dedman of Spicer Rudstrom.
The case is Erin Andrews v. Marriott International Inc. et al., case number 11C4831, in the Circuit Court for Davidson County, Tennessee.
Tribe Member Knew Of Flaws In Trust Land Leases, Court Told – Law360
Category: News, Press, Results | Friday, March 4th, 2016 | Comments Off on Tribe Member Knew Of Flaws In Trust Land Leases, Court Told – Law360
Tribe Member Knew Of Flaws In Trust Land Leases, Court Told
By Jack Newsham
Law360, New York (March 3, 2016, 7:17 PM ET) — A group of Nevada homeowners being sued by a Native American man who says they illegally built their homes on his trust land asked a Nevada federal judge Tuesday to keep their counterclaims alive, saying Leon Mark Kizer took payments and signed off on leases he knew might be illegal.
More than 180 people asked U.S. District Judge Robert C. Jones to let their counterclaims against Kizer move forward, saying he unjustly profited from payments from them and PTP Inc., the developer of their subdivision, while failing to disclose communications with the Bureau of Indian Affairs and the Washoe Tribe of Nevada and California that suggested PTP’s 99-year master lease on Kizer’s land is illegal. The homeowners sublet their plots from PTP and have poured millions of dollars into building their homes there.
Kizer is seeking a declaratory judgment that PTP’s lease and all the subleases are invalid because the law only allows 25-year leases for Native American land. He has argued that the subletters’ beef lies with PTP and their title insurers, which are sophisticated companies and have profited much more than he did from the development of the Pine View Estates subdivision. Kizer has said he didn’t have an attorney when he signed off on the master lease or the subleases and said homeowners should have looked into the matter themselves.
But the homeowners, which seek unspecified damages in their counterclaims, blasted those arguments on Thursday, saying what Kizer called black-letter law that makes the master lease invalid is actually “hotly contested.”
“Kizer[] argues that counterclaimants’ reliance on his misrepresentations about the master lease’s validity was not justified because counterclaimants supposedly could have determined from publicly available information that the master lease was not valid,” the opposition said. “This argument is nonsense.”
The homeowners, who are being sued by Kizer along with their association, PTP and the BIA, also said two cases cited by Kizer to argue that federal policy barred their claims — Narragansett Indian Tribe v. RIBO Inc. and Heckman v. United States — actually support their argument. Both of those cases acknowledged a Native American could be held liable for luring people into signing void contracts and damaging them as a result, as the homeowners allege Kizer did in the nearly two decades that elapsed between when he leased his land to PTP and when he filed suit.
Jerome Miranowski, an attorney for Kizer, told Law360 his client didn’t learn about questions to the validity of the leases until 2008 or later, not 2006 as the homeowners allege, and he said the BIA alerted the homeowners to concerns shortly thereafter, in 2010.
A smaller group of subletters asserted counterclaims against Kizer in January.
According to his complaint, Kizer entered into a master lease with PTP for his land in 1997 that was approved by a BIA official. The complaint claimed that the BIA indicated to then-Washoe tribal chairman Brian Wallace in 2006 that both the length of the 99-year lease and the purchase option violated federal law.
Leases on Indian trust land for business purposes can’t exceed 25 years, or 50 with an extension, and non-Indians can only buy trust land at fair market value and with BIA approval, the complaint said.
Lawyers for the homeowners didn’t reply to a request for comment.
Kizer is represented by Aaron J. Harkins and Jerome A. Miranowski of Faegre Baker Daniels and Douglas R. Brown of Lemons Grundy & Eisenberg.
The homeowners are represented by Scott E. Gizer, Eric P. Early and Diane M. Luczon of Early Sullivan Wright Gizer & McRae LLP.
The case is Kizer v. PTP et al., case number 3:15-cv-00120, in the U.S. District Court for the District of Nevada.
When Restraining Orders Cover Social Media Communication – Law360
Category: News | Thursday, March 3rd, 2016 | Comments Off on When Restraining Orders Cover Social Media Communication – Law360
When Restraining Orders Cover Social Media Communication
By Lyn Mettler
Law360, New York (March 3, 2016, 3:57 PM ET) — Does tagging a protected party on Facebook violate a restraining order or order of protection? What about tweeting the individual or mentioning them on Instagram? In December, a judge in New York state said it did, even though social media communication was not explicitly prohibited in the order of protection.
In The People v. Gonzalez, 15-6081M, the court ruled that when Maria Gonzalez “tagged” the protected individual in two posts, calling her “sad” and “stupid,” she did in fact violate the order. The order of protection issued against her required that she “refrain from communication or any other contact, directly or indirectly through third parties, by mail, telephone, e-mail, voice mail or other electronic or any other means.”
But how do you demonstrate that Gonzalez did or did not “tag” the individual beyond providing a potentially alterable screen capture, especially if parties in such cases deny the communication or delete it? Some attorneys use social media monitoring companies to provide verifiable data of the date, time and account of the post.
What Types of Communication Are Included?
While in this instance the court ruled that the social media communication was clearly in violation of the order, determining if such types of interactions are included is not always so clear-cut. “This is yet another case where the judiciary is struggling to keep up with the speed at which the technology world is moving as it impacts all of our lives,” says attorney James Goodnow, who chairs the technology and cybersecurity torts practice group at Lamber-Goodnow in Phoenix, Arizona.
Requirements for restraining orders and orders of protection vary by state and according to the original language of the order, though many attorneys agree that any form of communication, including social media, is implied. “A judge can specify in the restraining order if social media is included, especially if there is a history of harassment over the particular medium,” says Greg Freyberger, partner and trial attorney at Wooden McLaughlin in Evansville, Indiana. “However, I think if a judge enters a restraining order or protective order prohibiting contact, it is not unlikely that they would hold someone in contempt if that person posted something on social media and had a good idea that it would make it to the protected individual.”
Lisa Connor, a family law attorney in Chattanooga, Tennessee, notes that if a restraining order has a “no contact” provision, then there certainly can be no direct communication over any media or social media format.
Even indirect communication may fall within the scope of the order, such as in California, where the standard restraining order precludes both direct and indirect communications, according to Bryan Sullivan, partner at Early Sullivan Wright Gizer & McRae LLP. “The issues come up with posts on social media that are not directed at the victim,” he says. “Depending on what is written, those posts can be interpreted as indirect communications or attempts to send a message to the victim.”
Connor cautions even if indirect communication is not explicitly included, “once you have reached the point where there is a restraining order or order of protection, then assume that every comment you make on social media could come into evidence in your case. Worse, if there is an angry or threatening tone, then it could be considered stalking behavior.”
She also explains that in divorce cases where there are minor children that a mutual restraining order requires the parents not to speak ill of one another to their children. “If your children are within your social network and have access to your comments, then any disparaging comments about your spouse could be considered to be in violation of the order,” she says.
Proving Social Media Communications
If such communication is not explicitly prohibited in the restraining order, the burden is on the defense to demonstrate it is not included within the requirements of the order, says Dallas attorney Peter Vogel, chairman of the Internet, e-commerce and technology industry team at Gardere Wynne Sewell LLP.
Additionally, the accuser must provide evidence of such communication to demonstrate the action did in fact take place. This is where social media monitering companies come into play, assisting attorneys with social media evidence beyond a standard screenshot that can be Photoshopped.
For example, we had an individual come to us who was accused of violating a restraining order against her by tagging the accusing party in a tweet. The accuser had taken a supposed screen capture of said tweet on her phone, which the accused claimed had been Photoshopped from an existing tweet.
In this instance, it is up to the accuser to prove that this tweet was in fact posted to the offending account at a specific date and time; however, this simple photo image capture was not verifiable. Social media monitering companies can download and preserve public social media data with verifiable metadata that capture the account, date, time and even geographic data if it was so tagged that can be submitted into evidence as proof the posting did occur. Without such data, it can certainly be argued that the image was fabricated.
Additionally, Mark McBride, a high-profile criminal attorney in Beverly Hills, says, “the moving party would need to bring in the person most knowledgeable regarding that type of media platform.” An expert in social media communications can render his/her opinion as to why the post did or did not actually occur, using factual evidence to support their statements.
Sample Cases
McBride says he’s been involved with two cases where he defended an individual accused of violating a restraining order through the tagging an individual on Facebook and the consequences were serious. “In one, the judge gave my client a strong warning; in the other, the judge increased the terms of the restraining order from one year to three years,” he says.
In 2008, in the People v. Fernino, 19 Misc3d 290 (Crim. Ct, Richmond Co., NY 2008), the court ruled that a MySpace friend request did violate a family court temporary order of protection, which only specified that the “Respondent should have NO CONTACT” with the party, but did not explicitly prohibit social media. The decision stated, “It is no different than if the defendant arranged for any agent to make known to a claimant, ‘Your former friend wants to communicate with you. Are you interested?’”
In New Hampshire v. Craig,[1] the state Supreme Court in 2015 upheld Brian Craig’s prior convictions of witness tampering and stalking. Craig, for whom a permanent restraining order was in place regarding contact with a bartender, posted comments directed to the individual in the “Notes” section of his Facebook page, though without tagging her. Craig admitted to a police officer that he did write the posts. For the stalking charge, the court ruled that this activity met the contact requirements to convict even though the communication wasn’t sent explicitly to her, stating, “any action to communicate with another either directly or indirectly constitutes contact.”
In 2013, ABC News reported that a Massachusetts man was arrested for violating a restraining order against his former girlfriend when she received an email from him asking her to join Google Plus. The man maintained that Google did it without his knowledge.
According to ABC News, a Google community manager responded in a forum, stating, “Right now the emails that go out alert people of your activity on Google+, and more importantly the sharing of content with them. We send them an email when they aren’t yet on Google+ so they know that you are out there in the world [of] G+. They should only incur this email once.” So the man may not have actually initiated the email, yet was jailed for it. Ultimately, the criminal charges against him were dismissed.
Best Practices for Social Media Communications
When it comes to restraining orders, it’s important for attorneys to be as specific as possible in the wording of the requested order to ensure maximum clarity for both sides. “The greater the specificity of the order, the better,” says Vogel, noting that lack of specificity makes it easier for the other side to argue such communication was not included.
For individuals who have restraining orders against them, it should be assumed that any form of communication on any media is included. It’s also good practice to actually block the person who sought to restrain you in the first place, advises McBride.
Trying to toe the line with the restraining order is also a bad idea. “Just like the old saying about how to hit a tennis ball, you’re taking a huge risk when you try to stay just inside the lines,” says Jeremy Mishkin, co-chairman of the litigation department at Montgomery McCracken Walker & Rhoads LLP in Philadelphia.
It’s important to remember that social media monitoring companies may be monitoring and collecting your public communications without your notice, so assume anything and everything is potentially admissible. Connor advises, “Before you make that next posting, give yourself a Miranda warning — that anything you say can, and will, be used against you.”