Courtroom Strategy by Attorney Oscar Michelen Commentary on Current Litigation and Legal Issues Mon, 23 Mar 2020 17:18:17 +0000 en-US hourly 1 Courtroom Strategy by Attorney Oscar Michelen 32 32 14390642 Covid-19 Leave:Quick Update Mon, 23 Mar 2020 17:18:16 +0000 [...]]]>

So many of my employment law clients are calling and emailing me questions about their operations and responsibilities during this crisis, I thought I would just put this up for quick access .
Disclaimer: This answers only the basics of many questions received regarding amounts of benefits for which employees are eligible to receive under this law.  The DOL has also issued some initial guidance available  here.

Eligible Employees: If employer has fewer than 500 employees and leave is requested or needed for a COVID-19 Coronavirus related-absence.
Sick Leave
Covers employees regardless of length of employment. Up to 80 hours of Full pay (for part-timers, an average calculation) if employee is subject to a quarantine or isolation order, has been advised by a health care provider to self-quarantine, or is experiencing coronavirus symptoms and seeking medical diagnosis;
2/3rds pay if leave is to care for a family member or for a child whose school or daycare closed
Capped at $200 per day, or $2,000 in the aggregate.

Family Leave
Covers employees who have worked at least 30 days at employer.
Up to 12 weeks of first 10 days (i.e., interpreted as 2 weeks under current DOL guidance) is unpaid.
After the 10 days, remaining time at 2/3rds pay
Capped at $200 per day or $10,000 in the aggregate 

Employers are to receive a limited tax credit towards these payments. 

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If Coronavirus Causes Mass Layoffs: NYS and Fed Law May Require Warnings be Issued Tue, 17 Mar 2020 17:08:07 +0000 [...]]]>  If your company is covered by the Worker Adjustment and Retraining Notification (WARN) Act, (Federally, you have more than 100 employees, NY you have more than 50 employees) you may have to take certain steps to warn your employees about potential coronavirus-induced layoffs. The federal WARN Act imposes a notice obligation on covered employers (those with 100 or more full-time employees) who implement a “plant closing” or “mass layoff” in certain situations, even when they are forced to do so for economic reasons. It is important to keep in mind that these quoted terms are defined extensively under WARN’s regulations, and that they are not intended to cover every single layoff or plant closing.  Under Federal law, a plant closing is defined as 50 or more countable employment losses at a single site of employment in a 90-day period that results from ceasing operations in one or more operating units.  A mass layoff is defined as 50 or more countable employment losses at a single site of employment in a 90-day period that also involves 33% of the active workforce at the site. 

Employees with less than 6 months of service in the prior 12 months, or who work less than 20 hours per week, are not countable.  Notably, temporary layoffs of less than 6 months are not counted as an employment loss under Fed WARN.   

Generally speaking, employers must provide at least 60 calendar days (90 days in NY) of notice prior to any covered plant closing or mass layoff. Note, however, that if employees are laid off for less than six months, then they do not suffer an employment loss and, depending on the particular circumstances, notice may not be required. Unfortunately, in situations like this, it is hard to know how long the layoff will occur so providing notice is usually the best practice.

Fortunately, even in cases where its notice requirements would otherwise apply, the WARN Act provides a specific exception when layoffs occur due to unforeseeable business circumstances. This provision may apply to the COVID-19 coronavirus. But due to the fact-specific analysis required, this exception is often litigated.  It is unclear whether a court would consider pandemics to be “similar effects of nature” to “floods, earthquakes, droughts, storms, tidal waves or tsunamis…” as referenced in the Fed WARN regulation relating to natural disasters.

Moreover, this exception is limited, in that an employer relying upon it must still provide “as much notice as is practicable, and at that time shall give a brief statement of the basis for reducing the notification period.” In other words, once you are in a position to evaluate the immediate impact of the outbreak upon your workforce, you must then provide specific notice to “affected employees.” You must also provide a statement explaining the failure to provide more extensive notice, which in this case would obviously be tied to the unforeseeable nature of the outbreak and its aftermath.

The WARN Act has specific provisions requiring notice to employees, unions and certain government entities. The Act further specifies the information that must be contained in each notice. Keep in mind that some states have “mini-WARN” laws that may apply.

NYS State Law

The New York State Worker Adjustment and Retraining Notification (WARN) Act requires businesses to give early warning of closing and layoffs. Businesses must give notice to:

  • All affected employees
  • Any employee representative(s)
  • The New York State Department of Labor (DOL)
  • The Local Workforce Investment Board (LWIB)

Notice by employers to the Department of Labor should be mailed or emailed to:

Richard Grossi
New York State Department of Labor
Building 12, Room 425
State Office Campus
Albany, New York 12240


The WARN Act applies to private businesses with 50 or more full time workers in New York State. It covers:

  • Closings affecting 25 or more workers
  • Mass layoffs involving 25 or more full-time workers (if the 25 or more workers make up at least 33% of all the workers at the site)
  • Mass layoffs involving 250 or more full-time workers
  • Certain other relocations and covered reductions in work hours

This means that covered businesses must provide all employees with notice 90 days prior to a:

  • Plant closing
  • Mass layoff
  • Relocation
  • Other covered reduction in work hours

Businesses that do not provide notice may be required to:

  • Pay back wages and benefits to workers
  • Pay a civil penalty

Early warning gives the DOL and the LWIB the chance to work with the business early on and provide employees with information about:

  • Unemployment Insurance (UI)
  • Workforce Programs
  • Resources designed to get employees back to work quickly

Early warning also benefits the business. It can shorten the time that workers are on UI. It therefore may lower the UI charges associated with the layoff or closing.

With respect to the coronavirus pandemic, there are only two exceptions that might be applicable to employers: (i) the natural disaster exception; and (ii) the unforeseen business circumstance exception. Under the natural disaster exception, an employer can provide reduced notice in the event the job losses are due to a “natural disaster” such as a flood, earthquake, or drought. Whether this exception applies to the coronavirus pandemic is unclear as pandemics are not necessarily similar to floods, earthquakes or droughts. Further, it is unclear whether the job losses have to be a direct result of the natural disaster (e.g., the establishment closed because it was destroyed by an earthquake) or whether they can be an indirect result of the natural disaster (such as the current situation).

The unforeseen business circumstance exception allows an employer to provide notice as soon as practicable, rather than 90 days in advance, if the employment losses are caused by business circumstances that were not reasonably foreseeable. An important indicator of a business circumstance that is not reasonably foreseeable is that the circumstance is caused by some sudden, dramatic and unexpected action or condition outside the employer’s control that directly prevents the employer from providing the required 90 days’ notice. While this exception is construed narrowly, it is very likely to apply to New York business that have to take employment actions that produce job losses triggering NY WARN as a result of the coronavirus pandemic.

If a New York employer has to take the unfortunate step of laying off employees, closing establishments and/or greatly cutting back on worker hours, such employment actions may trigger NY WARN. Therefore, if a New York employer is contemplating such employment actions, the employer should consult with counsel to determine what notice, if any, needs to be provided to the impacted employees as well as the government and others.

Federal law

The Worker Adjustment and Retraining Notification Act (WARN) protects workers, their families, and communities by requiring employers with 100 or more employees (generally not counting those who have worked less than six months in the last 12 months and those who work an average of less than 20 hours a week) to provide at least 60 calendar days advance written notice of a plant closing and mass layoff affecting 50 or more employees at a single site of employment. WARN makes certain exceptions to the requirements when layoffs occur due to unforeseeable business circumstances, faltering companies, and natural disasters. Advance notice gives workers and their families some transition time to adjust to the prospective loss of employment, to seek and obtain other jobs, and if necessary, to enter skill training or retraining that will allow these workers to compete successfully in the job market. Regular federal, state, local, and federally-recognized Indian Tribal government entities that provide public services are not covered.

Employees entitled to notice under WARN include managers and supervisors, as well as hourly and salaried workers. WARN requires that notice also be given to employees’ representatives, the local chief elected official, and the state dislocated worker unit.

DOL’s Employment and Training Administration administers WARN but has no enforcement role in seeking damages for workers who did not receive adequate notice of a layoff or received no notice at all. Some states have plant closure laws of their own.

Employers considering a layoff can contact the State Dislocated Worker Unit to find out more information on notice requirements in their state.

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Avenatti Convicted of Extorting Nike. Lessons to Be Learned. Fri, 14 Feb 2020 20:34:53 +0000 [...]]]> Michael Avenatti – remember him? He was the lawyer who represented Stormy Daniels, the porn star, in a lawsuit against President Trump. Well hours ago he was was found guilty of trying to extort sneaker giant Nike out of $25 Million.

A New York federal jury found Avenatti guilty on three counts, including extortion, wire fraud and transmission of interstate communications with intent to extort. He faces up to a combined 42 years in prison. I predict 5 years as the likely sentence. June 17 is the scheduled sentence date.

The charges alleged that he tried to extort up to $25 million from Nike by threatening to expose corruption at the sports footwear company unless he was allowed to conduct an internal probe of Nike.

Michael Avenatti courtesy of ABC News

Avenatti of course rose to his 15 minutes of fame during frequent cable television program appearances in 2018 and 2019 as journalists put him on for information about Daniels and her affair with President Trump. She made claims about the affair before he became president and a received a payoff through Trump attorney Michael Cohen to remain silent about it.

Avenatti was arrested last year as he was about to meet Nike lawyers to pursue his demands for millions to conduct an internal probe of the company. Avenatti maintained he was taking the aggressive position at the urging of his client, Gary Franklin, who ran a youth basketball league in Los Angeles and was angry that Nike ended a decade-long sponsorship that provided $72,000 annually and free gear. He sought $1.5 million for Franklin, as well.

So what can attorneys learn from this saga – besides not extorting a global company for $25 Million? Well (1) When you get a client or a case that gives you national attention – use that exposure wisely. Don’t over-expose yourself, don’t over-hype yourself. Take a page out of Jose Baez’s playbook. He represented Casey Anthony in what was then the Trial of the Moment. But he rarely played the media darling and rarely showed up on cable news. Even after the case was over, he did not take every interview thrown at him. Instead, he used that notoriety to build up his practice into a national criminal defense law firm. (2) There’s a fine line between making a pre-litigation demand and being accused of extortion. But there is a line. Do have a legitimate and valid claim that can be spelled out in the demand letter. Don’t threaten exposure in the media as part of your demand. Any sophisticated potential defendant will see the likely negative press if you file a claim. Don’t demand $1.5 Million for your client and $25 Million for yourself. It’s a bad look and why would Nike need you to conduct an investigation?

Avenatti flew too close to the sun and his head got too large. He thought his name alone would make Nike bend the knee and quiver at the thought of the bad publicity. Let it be a cautionary tale for those attorneys who suddenly find themselves as the flavor du jour of cable news.

Follow me on Twitter @oscarmichelen

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Copyright Troll Attorney Richard Liebowitz and Race-Faker Rachel Dolezal Team up to Quickly Lose Copyright Lawsuit Over Dolezal’s Selfie Wed, 12 Feb 2020 17:39:57 +0000 [...]]]> From EIN Presswire:

Five years after she came to national attention for identifying as black woman while being of European ancestry and having no verifiable African ancestry, Rachel Dolezal is again at the heart of a legal controversy. This time, Dolezal filed suit for copyright infringement after Paper Magazine included Dolezal’s public Instagram post as part of their news coverage.

Last summer, Dolezal announced on Instagram that she’s bisexual. Among the pop culture and celebrity media that covered the June 15 announcement was New York-based Paper Magazine, which published a story, including Dolezal’s Instagram selfie which was part of her announcement.

Three months later, a lawsuit filed on behalf of New York company Polaris Images accused Paper Magazine of copyright infringement based on an alleged “exclusive license” to market all images of Dolezal.

The Sept. 3 lawsuit was filed by New York attorney Richard Liebowitz, who was recently called a “copyright troll” by a federal judge due to his prolific litigation history — filing over 1,100 copyright infringement lawsuits over the past three years .

The lawsuit against Paper Magazine sought all profits earned from publishing the photo, plus $150,000 in damages — the maximum allowed under federal law for willful infringement of a copyrighted work.

This time, however, Robert Tauler, Paper Magazine’s Los Angeles attorney, found the way to stop Liebowitz’s deluge of copyright lawsuits stemming from social media posts.

“Our team was able to find a legal loophole in Mr. Liebowitz’s modus operandi, which forced Liebowitz to backtrack and name Dolezal as the plaintiff instead of the original plaintiff, Polaris,” Tauler said. “However, plaintiff’s lawyers can’t switch horses in the middle of a copyright lawsuit, and when we challenged Mr. Liebowitz’s second attempt he was forced to dismiss the case before our motion to dismiss was even heard by the court.”

Liebowitz dropped the lawsuit on Jan. 29, and apologized to U.S. District Court Judge Katherine Polk Failla, explaining that the switch was just a misunderstanding an explanation Tauler expects to challenge when seeking attorneys fees for his client.

“I believe the loophole we exposed can put an end to endless filing of copyright lawsuits like this one,” Tauler said. “Some copyright attorneys make a living exploiting technical aspects of the law that do not advance any of the objectives of the Copyright Act, let alone provide any benefit to society. Lawsuits like this hurt the legal profession by flooding our courts and draining the resources of legitimate businesses.”

A copy of the lawsuit and Liebowitz’s apology letter to the court can be found here

The picture at issue was a selfie Dolezal took when she allegedly came out as bisexual during Pride Month:

The legal loophole that the lawyer refers to is that since it was an Instagram selfie and since you give Instagram a nonexclusive license to post the picture when YOU post it, Dolezal was no longer the exclusive owner of the photograph, a requirement to be a copyright infringement plaintiff.

We will wait to see if the court sanctions Liebowitz or awards attorney’s fees to paper’s lawyers. But this can be added top list of cases where Liebowitz has had to face court scrutiny and/or pay fines or post bonds due to his trolling practice. Previous blog posts of mine about him can be found here: and here:

When will he learn we wonder?

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Big Change in the Real Estate World: NY Just Eliminated Renter’s Paying Brokers’ Fees Thu, 06 Feb 2020 14:45:42 +0000 [...]]]> When my son was looking for an apartment in Manhattan a few years ago, the sticker shock of the rental prices was the least of our issues. The worst was that some brokers wanted 15% of the annual lease up front along with first and last month’s rent and two month’s security. So for a $2500 per month apartment we would have to pony up $4,500 in brokers’ fees; $5,000 in two rent payments; and $5,000 in security for a total of $14,500. Then there were added costs for credit checks and other sundry items.

Most of that is out the window now that late on Tuesday, New York State effectively eliminated brokers’ fees paid by tenants.

In an unexpected addendum to last year’s rent laws, state regulators said renters can no longer be charged broker fees, potentially upending the market and delivering the latest blow to an industry already reeling from new regulations and even bigger tenant and rent-stabilization protections. New York is one of the few cities in the country with a broker industry that has such financial leverage over prospective tenants.

Brokers can still collect a fee, the state said in the revised regulations, but the fee must be paid by the landlord unless a prospective tenant hired the broker directly to help them find an apartment.

The Real Estate Board of NY is likely to fight these new regulations

Landlords’ and their advocacy groups can be expected to try and fight the law and lobby for amendments but that will likely not be successful. More likely is that landlords will pass the cost onto renters in increased rent, but with a current glut of available apartments after huge over-building period in Manhattan, that may not be so easy to do. Also, many NYC apartment are rent-regulated so that the rent can be increased only so much.

Brokers can expect to be pressured by landlords to take large cuts in their fees. Remember a tenant is only looking for one apartment but a landlord can be listing several with a broker so the landlord has much more leverage to negotiate a different (lower) rate with the broker.

We can also expect to see many sophisticated landlords simply creating their own brokerages to eliminate the middle man and keep the fees themselves. They had no incentive to do before with their tents forking over the cash, but now there is great reason to do so and keep the cash in the family.

The same regulations also state that a broker can charge a renter no more than $20.00 in application fees including credit checks. This cuts off another supply line of cash for brokers who made an additional couple of hundred bucks a pop on the fees and checks each time renters applied for an apartment. In June, the state legislature limited security deposits to one month. Going back to my scenario, these rules would have saved us a ton of cash!

The rental brokerage industry is the biggest loser in this obviously and many will be fighting to survive or will have to make dramatic cuts in staff. Prospective tenants will have to make sure that they DO NOT SIGN an agreement sent by a broker stating that the renter is hiring the broker themselves. That allows the broker to pass the fees on to the tenant. The already volatile world of NYC real estate just got more heated. Let’s see how this all shakes out in the coming months and rest of the year.

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Caveat Employers: New Laws Going into Effect in 2020 Affect Every Employer Mon, 30 Dec 2019 19:43:31 +0000 [...]]]> A host of new employment obligations ranging from sexual harassment prevention training to stricter data breach notification requirements will go into effect in early 2020 and will be a shock to some employers who were previously exempt.

Mandatory Sexual Harassment Prevention Training

NYS Human Rights Law Made to Apply to ALL Employers

One of the biggest overhauls of 2019 involved sweeping changes to New York State Human Rights Law [NYSHRL] expanding harassment and discrimination protections.

Among employers’ new obligations was to give workers sexual harassment prevention training by this past October or face fines if you are caught or a complaint is made. That obligation continues and employers are required to do that training annually.

Also as a result of changes to NYSHRL, effective Feb. 8, the Human Rights Law will apply to employers of all sizes. Previously, except with respect to sexual harassment, the law covered only employers with four or more employees. So the minute your business takes on a single employee you must provide the training. The law was also changed to protect non-employee service providers, such as independent contractors, consultants and vendors, from all forms of unlawful discrimination and harassment based on any protected characteristic under the NYSHRL.

The NYSHRL covers protected characteristics including sex, race, color, creed, religion, age, sexual orientation and disability. This means employees will be able to file a charge of discrimination with the state’s Division of Human Rights (NYSDHR) even with the smallest of employers. Most small businesses are unprepared and ill-equipped to handle the new requirements. A number of websites have already popped up offering the training online at cost ranging from $11.95 to $100.00 per employee. The State also has link that provides it for free:

City Bans Marijuana Testing of Employees

Effective May 10, 2020, New York City’s Fair Chance Act will be amended to prohibit employers from requiring applicants to submit to testing for the presence of marijuana as a condition of employment. The law, however, contains exceptions for those who apply to work in areas involving public safety, such as law enforcement personnel and construction workers.

Change to Non Disclosure Agreements

In addition, as of Jan. 1 under changes to NYSHRL, any agreement with an employee that prevents the disclosure of factual information related to a future claim of discrimination is void and unenforceable unless the employee is specifically informed that despite the nondisclosure agreement, the employee is not prohibited from speaking with law enforcement, the Equal Employment Opportunity Commission, the NYSDHR, a local human rights agency or an attorney retained by the employee. Law firms and employers alike would be wise to add this language right now to their form non-disclosure or settlement agreements.

Statute of Limitations Increased to Three Years

Furthermore, effective Aug. 12, 2020, the statute of limitations for filing a sexual harassment claim with the NYSDHR is extended from one to three years. This widening of the statue of limitations will make it easier for employees to bring up several separate instances in one claim. That is particularly important because the State also changed the law to match the law in the City of New York where the Human Rights Law in 2009 was amended remove the requirement that workplace harassment be “serious or pervasive” (the Federal standard). Now a single incident that is discriminatory or harassing can form the basis of a claim.

Outside of Human Rights Law changes, some other notable changes include:

New York State and New York City Minimum Wage Increases

As of December 31, 2019, the minimum wage for New York employers is:

  • $15 per hour for New York City employers
  • $13 per hour for Westchester, Nassau and Suffolk County employers
  • $11.80 for employers in the remainder of New York State

Minimum Exempt Salary Increase

New York has increased the minimum salary an employee must be paid in order to qualify for the administrative or executive exemption under state wage and hour law. Exempt status under both exemptions is based on (1) the payment of a minimum exempt salary; and (2) whether the employee meets the duties test of the applicable exemption. While the duties test for these exemptions remains unchanged, effective December 31, 2019, the minimum exempt salary is:

  • $1,125.00 per week ($58,500 annually) for New York City employers
  • $975.00 per week ($50,700 annually) for Westchester, Nassau and Suffolk County employers
  • $885.00 per week ($48,750 annually) for employers in the remainder of New York State

Effective January 1, 2020, the minimum exempt salary under the federal Fair Labor Standards Act increased to $684 per week ($35,568 annually) for the executive, administrative and professional exemptions. Because New York’s salary threshold for the administrative and executive exemptions is greater than the federal threshold, New York employers must comply with the higher state threshold for those exemptions.

However, New York’s minimum salary threshold applies only to the administrative and executive exemptions, not the professional exemption. Accordingly, New York employers who rely upon the professional exemption must only comply with the federal salary threshold.

Paid Family Leave Changes

•    Effective Jan. 1, employees taking Paid Family Leave will receive 60% of their average weekly wage up to a cap of 60% of the current statewide average weekly wage of $1,401.17, so the maximum weekly benefit for 2020 will be $840.70. The benefits are funded by employee contributions collected via payroll deductions. In 2020, the contribution is 0.270% of employees’ gross wages each pay period, up to a max of $196.72 for the year.

Cannot Use Salary History in Hiring    

On Jan. 6, a statewide ban on salary history inquiries takes effect. Employers and anyone connecting applicants with employers are forbidden from asking job applicants about their wage or salary histories as a condition of consideration for employment or promotion.

Additionally, employers will be prohibited from seeking an applicant or current employee’s salary or wage history from a current employee, or their current or former employer. Salary history inquiries have been prohibited in New York City since October 31, 2017, and are similarly prohibited in Suffolk and Westchester Counties.

Revised Requirement for Employee Handbooks re: Abortion

•    By Jan. 7, employee handbooks must include a notice of employees’ rights and remedies under the a 2019 law that prohibits employment discrimination based on an employee or dependent’s reproductive health decision-making (ie., abortion, etc.).

Natural Hair is now a Protected Characteristic

  • The City of New York also made it illegal to discriminate based on a person’s hair or hairstyle.

Data Breach Safeguards

Effective March 21, as part of New York’s SHIELD Act, employers must adopt more stringent data security safeguards to protect employee data. More expansive data breach notification requirements already went into effect in 2019. 


I know I speak for many of my small business owner clients when I say that these new laws will come as a shock. It’s important that if you have even a single employee, you get educated on all the new rules and regulations and take steps to come into compliance.

Follow me on Twitter @oscarmichelen

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Custody Battle Looms Over Fearless Girl Wed, 27 Nov 2019 17:54:53 +0000 [...]]]> State Street Global Advisors Trust Co. (SSGA) , the investment firm behind the “Fearless Girl” statue placed near the New York Stock Exchange, is pursuing legal action against Kristen Visbal, the sculpture’s creator for alleged breach of contract and trademark infringement.

SSGA commissioned Visbal to create Fearless Girl allegedly to promote gender fairness and female empowerment in investment and to highlight its gender equality fund. Detractors said it was to wash SSGA’s image after SSGA agreed to pay $5 Million in 2017 in a settlement to more than 300 women and 15 Black employees in senior positions who received allegedly substantially less pay than their white male colleagues.

Kristen Visbal’s or SSGA’s “Fearless Girl” (photo by Anthony Quintano/Flickr)

Whatever the purpose, the statue was a viral sensation and has become a symbol of female empowerment. It garnered over 1 billion views in just the first 12 hours of its unveiling on International Women’s Day. Visbal began selling reproductions of the statue for $6,500 each in a limited run of 1,000 miniatures. According to Visbal’s website advertising these copies, Visbal has already sold at least 137 editions of the statue. She also sells signed copies of the original photo of the statue by the famous Wall Street statue of a charging bull for $5,000.00 (unsigned go for a mere $500). While this is pricey, its not everyday a sculpture attracts this much praise and notice. So who can blame an artist for trying to profit off one of their works that has so touched the mainstream? SSGA can.

SSGA originally filed suit in NY Supreme Court but Visbal’s lawyers removed it to Federal Court, specifically, the Southern District of New York. It claims that under its contract with Visbal, the company and not her owns the copyright in the statue. They also claim it has become a trademark of the company. According to the complaint, the design was based on guidelines and input given to Visbal by SSGA. They point out that when Visbal wanted to use a replica at the Women’s March in Los Angeles she sought their permission to do so. They claim in their suit that they refused to give her permission but she used a replica anyway.

Photo of the $6,500 mini version from

That’s certainly pretty strong evidence that at least at one point Visbal believed she need permission to use a replica of the statue. In the end the contract between the parties is what will control. While it seems illogical that an artist would be unable to use their own work, if it was created as a “work for hire” a legal term that provides an exception to the rule that whomever created the work owns copyright in the work. Work for hire does not apply to sculptures unless created by an employee of the company which Visbal is not. In its suit, SSGA is instead relying on its contract with Visbal which expressly set forth the rights each other has in the statue. The contract, which SSGA claims is confidential, is not attached to the lawsuit so I cannot comment on its specific terms.

From the complaint however, it appears that the contract provides a license for the copyright and trademark in the statue but with limited use. SSGA claims that the statue must be used only to promote female leadership and empowerment in the financial world. That is why they were upset when they learned that the replica was commissioned by Maurice Blackburn a large Australian law firm whose specialties include personal injury, class actions, superannuation, insurance, and financial services. Maurice Blackburn’s website touts that it is “Australia’s #1 [plaintiff] law firm.”

Just from reading the complaint, it appears SSGA has a strong claim against Visbal as if the contract is clear there should be no question as to what she is allowed to do with the statue and its design. Visbal may herself have been fearless, but her conduct may not have been legal. The case is in the discovery stage so I will keep you posted how this shapes out.

Follow me on Twitter @oscarmichelen

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The Case for Impeachment Fri, 22 Nov 2019 15:26:46 +0000 [...]]]> As a trial lawyer, I think I would like my chances trying this case of impeachment before just about any jury but the GOP Senate who will nullify the House’s articles no matter what. That doesn’t mean the House shouldn’t vote the articles (including contempt of congress). In fact, I believe they must. Will it help/hurt the election? Some things don’t matter – this is not perjury about some sex scandal in the oval office. This is withholding Congressionally approved aid and trying to get a foreign nation to help in a domestic political campaign. I watched most of the hearings, they were not boring or manufactured to me. A few simple witnesses laid out a perfectly clear timeline of corruption of our systems and policy. ICYMI here it is for you:
(1)Trump’s Ambassador to the EU confirmed that Trump has never cared about Ukrainian sovereignty, democracy, rule of law, or the war with Russia. He cares only about things that have to do with him personally

(2) He stated on the WH lawn and in the Oval Office that he sees no problem with getting information from a foreign nation about a political opponent. He saw an opportunity in Ukraine. He engaged Giuliani to explore it This greatly disturbed the delicate systems OUR foreign service had in place in this delicate region.

(3)Several months ago, Giuliani began to court Ukrainian prosecutor general Yuri Lutsenko with the goal of opening investigations into Burisma/Biden. The aim was clear — find/fabricate dirt on VP Biden, at the time the leading Democratic candidate in the 2020 election.

(4)Giuliani also wanted Lutsenko to investigate “Ukrainian meddling” in the 2016 US presidential election. The goal — deflect attention from the ACTUAL Russian intervention in 2016 & thereby strengthen legitimacy of Trump victory in 2016. This theory had been first put out into space by PUTIN and as Fiona Hill testified had long been debunked by OUR foreign service and intelligence community. As she stated, advancing this theory tremendously helped PUTIN.

(5)Lutsenko despised US Amb Yovanovitch – a career diplomat with a sterling record who had been key in Ukraine diplomacy and in making sure Ukraine had met anti-corruption goals.. In this first quid pro quo, Giuliani got Yovanovitch fired in return for Lutsenko’s agreement to open these investigations. Things were on track for the Trump/Giuliani plan.

(6)But then electoral politics in Ukraine intervened. Zelensky – a reform candidate who was not a sure fire winner was elected president, and Lutsenko’s boss, Poroshenko, lost. Lutsenko eventually lost his position. So Giuliani’s first play failed.

(7) Zelensky was a new , inexperienced president in Ukraine. He wanted to bolster his standing in the community and desperately wanted a personal WH meeting with Trump.

(8)Trump took advantage, demanding investigations into Burisma/Biden and “Ukraine 2016 meddling” in return for an Oval office bilateral meeting with Zelensky. He drafted new actors — the 3 amigos Sondland, Volker and Pompeo– to work with Guiliani and achieve these “deliverables” for 2020. He instructed them to “talk with Rudy” if they needed info and direction.

(9) In his call to Zelensky on July 25th, Trump bluntly asked for Zelensky to “do us a favor” — opening these investigations. In other words, Trump was asking a foreign government to help his reelection campaign. Almost all on the call were shocked and several reported the issue to WH attorneys and others.

(10) $400+Million in US Military aid had been approved by Congress to help Ukraine fight off Russia. It was trapped in a bitter “hot” war with Russia which had invaded and occupied Ukrainian territory. The previous money allocated had run out and this new tranche was needed immediately to help continue Ukraine’s efforts.

This guy is even worse than . . .
This guy

(11) Trump then upped the ante and froze U.S. military assistance to Ukraine. The entire intelligence and foreign service community was struggling to understand why it was held up. Testimony and emails show that Pompeo knew it was held up at the direction of Mick Mulvaney and POTUS. Mulvaney admitted this in a press conference. Sondland told Ukranian officials in a WH meeting with Hill and Amb. John Bolton who was then the National Security adviser to POTUS. Bolton immediately ends the meeting and tells everyone but Hill to get out. He tells Hill to report this to WH attorneys and to tell them that he will not be part of “whatever drug deal” is being cooked up.

(12) Zelensky was ready to acquiesce to this quid pro quo and arranged to announce the opening of these investigations on Fareed Zakaria’s CNN show.

(13) In a call to Sondland who was then in a Kyiv cafe with David Holmes -and on an unsecure phone – POTUS repeatedly asked if Zelensky was going to announce the investigations. Sondland told him “Yes. He loves your ass and will do whatever you want.” Holmes hears this and asks Sondland what Trump thinks about Ukraine policy. Sondland tells him Trump only cares about big things that have to do with him and does not give a shit about Ukraine.

(14) By now folks are already discussing the ramifications of the July 25 call when the whistleblower stepped up and reported it to Congress.

(15) Trump panicked and released the aid which by then had been held up 55 days.

(16) Trump then told Sondland on September 9th he didn’t want anything from Ukraine anymore.

(17) But the impeachable offenses had already been committed Trump used his public office the most powerful office in the world- to pursue his private electoral interests. Or as Hill said a “Domestic political errand” That’s the definition of abuse of power.

(18) To get what he wanted from a weaker head of state who was our ally in need, Trump withheld military assistance to a US partner at war with Russia. (14,000 people have died). This was extortion You want to call it attempted extortion or attempted bribery OK but I do not see it as an attempt. It was a completed act because the aid was withheld and the announcement was scheduled. Were it not for the whistleblower Zelensky would have gone on CNN and done as he had been told.

(19) POTUS asked a foreign govt to investigate a private American citizen, even though there is zero evidence of any wrongdoing by Hunter Biden.(Trump never expressed any interest in anti-corruption in Ukraine generally; nor did he use proper channels to pursue.) That’s abuse of power. But its also FELONY HYPOCRISY. All of his children except Tiffany and Barron have used the WH for their personal financial gain.

(20) POTUS and his henchmen only stopped running the extortion/coercion/”drug deal” after they were caught. (And most witnesses only came forward to testify after the whistleblower exposed this abuse of power)

(21) He has also instructed other key witnesses not to testify including Mulvaney, Bolton and Pompeo. He did not let Sondland see his documents and emails before Sondland’s testimony. That’s abuse of power and contempt of Congress.

As a middle-school students we closely watched the Watergate hearings and impeachment inquiry. This is 100 times worse. This goes to the very foundation of our system that foreign policy be conducted through proper channels and not be used to extract leverage against a political opponent. Will he be convicted by the Senate – of course not. McConnell will never let it happen. So what? This has to be done on the full record in the Senate and let the chips fall where they may. But this President is corrupt; he has corrupted our system; he has corrupted our foreign policy; he has endangered the people of Ukraine; he has played into the hands of Vladimir Putin; he has belittled and demeaned the office. He must be impeached.

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Copyright Troll Attorney Found in Contempt of Court for Lying About Grandparent’s Death Thu, 14 Nov 2019 19:21:11 +0000 [...]]]> Its the oldest excuse in the middle school playbook: Telling the teacher that you didn’t do your homework because your grandmother or grandfather died. Of course it never worked, and guess what – it doesn’t work in Federal Court either.

Attorney Richard Liebowitz has been declared a copyright troll by Federal judges; has been ordered to post bonds on civil cases due to their frivolous value; and now has been held in contempt of court for lying about his grandfather’s death in order to explain a missed court appearance. Liebowitz has filed over 1,000 copyright trolling lawsuits over the past few years in the Southern District of New York, alone for websites allegedly copying and posting a digital image without the photographer’s permission. But get this – its not the photographer who finds out about the infringement, its Liebowitz who then immediately files a lawsuit in hopes of getting a quick settlement and netting a legal fee that’s a percentage of the recovery.

The recitation of what happened is lengthy but a worthwhile read to lawyers and non-lawyers alike. Lawyers who have cases against Liebowitz will want to have this information and lawyers who don’t will want to see how far and how intransigent a lie can be carried. Non-lawyers can use the story to educate themselves about making sure they choose the right lawyer when they need one. It also just provides a crazy tale of lies and stubbornness gone to the extreme.

Strike One: One of his many cases was scheduled for a conference before Judge Cathy Seibel. Liebowitz was as no show. Seibel directed Liebowitz to explain “why he should not be required to pay Defendant’s attorney’s fees for the time expended to appear at the conference.”

Strike Two: Liebowitz filed a letter with the court saying he missed the April 12 conference because “I had a death in the family.” He added that, “this was an unexpected urgent matter I needed to attend to.” He then requested that the discovery conference be rescheduled (and that it be conducted telephonically since he would be “out of the office”).

During the phone conference, Liebowitz told her that “the death in the family occurred on the morning of April 12,” a Friday, and he apologized for not letting her or opposing counsel know. While that normally may have sufficed the judge, a former Federal prosecutor, noted that other issues arising during the conference “reflected negatively” on Liebowitz’s credibility. She pointed to conflicting statements he made about the provision of discovery materials, as well as Liebowitz’s claim to defense counsel that he could not produce those records “because he was out of the country due to an emergency, when in reality he was at a trade show in Europe trying to drum up business.”

Strike Three: The judge went on, “At that point, concerned about Mr. Liebowitz’s credibility, I determined that I could not merely accept Mr. Liebowitz’s representation that he missed the April 12 conference because of a death in the family.” As a result, she ordered Liebowitz to “provide evidence or documentation regarding who died, when, and how he was notified.”

On May 1, two weeks after the telephone conference, Liebowitz wrote the court to “let the Court know the reason for my absence at the conference scheduled for April 12, 2019.” Liebowitz then claimed his grandfather “unexpectedly passed away” that Friday, “and I needed to immediately arrange to be with my family during this difficult time.”

Liebowitz continued, “In the Jewish religion certain customs needed to be done before the Sabbath that I needed to assist in. I truly hope the Court understands this emergency.” Liebowitz did not further describe his responsibilities prior to the Sabbath (which begins at sunset on Friday and continues until nightfall on Saturday).

Seibel immediately dismissed Liebowitz’s letter as not responsive, writing that she ordered him to “documentwho passed away, when the person passed away and when Mr. Liebowitz was notified.” She sought such proof, Seibel noted, because “there is reason to believe Mr. Liebowitz is not being candid.” The judge added, “When someone dies, there is documentation including a death certificate and (almost always) an obituary, and nowadays one’s phone usually contains evidence of what one was told and when.” Since this is not documentary evidence as required, the Judge ordered Liebowitz to provide documentary evidence about what he was talking about. She gave him until May 3.

Strike Four: May 3 Liebowitz told the court he settled the case. I’m sure he got next to nothing just to not have to continue with Seibel’s investigation. Did he tell his client that? I doubt it. Anyway, Seibel was not having it. Seibel noted the case closing did not relieve Liebowitz of his responsibility to “document the death in the family that he says caused him to miss the conference.” Seibel gave Liebowitz until May 9 to document his grandfather’s death since, “I still need to satisfy myself that there is no need for disciplinary or other inquiry.”

Judge Cathy Seibel, at her alma mater Fordham Law moderating a panel on Fordham female graduates who are on the bench. Picture courtesy of Fordham law

Strikes Five Through Eight: Over the following months, Liebowitz filed four “good faith” sworn declarations that asserted he had met his obligations in response to Seibel’s request for proof of his grandfather’s demise. In reply to each filing, Seibel explained that Liebowitz–despite her repeated orders–had failed to offer any documentation to support his death-in-the-family claim.  Liebowitz’s court filings did not include his late grandfather’s name (or indicate what side of the family he was on)or provide any documentation. So on July 26, Seibel ordered Liebowitz, “under pain of contempt,” to provide her with a copy of his grandfather’s death certificate “so as to support his claim that he could not attend the April 12 conference, nor provide timely notice to the Court or opposing counsel, as a result of his grandfather’s death.”

Strike Nine: In reply to Seibel’s order, Liebowitz again claimed that he had already “discharged my obligations,” adding that he should not be ordered to “produce a death certificate of my grandfather, which is a personal matter.” Uhm . . . you can’t tell a Federal judge that ordered you to do something that they shouldn’t order you to do something. If you believe the judge stepped out of bounds, you have recourse – go to the administrative judge or file an immediate appeal with an injunction.

Acknowledging that the “death of a loved one is indeed a personal matter,” Seibel held that “whether Mr. Liebowitz has been candid with the Court is a professional matter, so he is not relieved from my Order that he produce the death certificate.” She told Liebowitz that if he was concerned about the death certificate being available on the public docket, he could “provide the document directly to my chambers to ensure his privacy.” Seibel also warned that if Liebowitz did not produce the death certificate by August 26, he would be held in contempt of court, face monetary sanctions, “and/or referral to this Court’s Grievance Committee.” Sane Lawyer: Time to fold right? Just fess up and take your hits, right? Liebowtiz: Hold My Beer.

Strike Ten: Incredibly, Liebowitz again refused to produce proof of his grandfather’s death. In another “Good Faith Declaration,” the lawyer declared that, “I will not produce a death certificate of my grandfather, which is a personal matter that has no bearing on the facts of this case.” For good measure and to just raise the stakes , Liebowitz’s also took a shot at Judge Seibel, saying that since her demand for the death certificate “is of a highly personal nature and not related to this case, it likely constitutes a usurpation of judicial authority.” Dismissing Seibel’s concerns, Liebowitz blithely declared, “I missed a single court conference due to a death in the family. It happens.” All he needed to add was “Get Over It!” and he could have joined the Trump Legal Team. Predictably, Seibel declared Liebowitz to be in contempt of court and began levying fines of $100 per day until the death certificate is produced starting on October 2.

Strike Eleven: On November 1, when he still had not produced the death certificate, and had not paid any of the fines, it rose to $500 per day and a hearing was scheduled for November 13, 2019.

Strike Twelve:  On November 13, 2019, Liebowitz showed up with two criminal defense lawyers who did not really help his cause. First of all , it was finally revealed that his maternal grandfather had actually died on April 9, 2019, not April 12, and that his estate had already been filed for Probate by the 12th so there was no urgency or arrangements that had to be made. Liebowitz’s parents are very wealthy living in a 10,000+ square foot mansion so I think they could have had plenty of help in making arrangements if that was in fact necessary.

According to the Smoking Gun website, which apparently had a reporter in attendance at the hearing, Seibel stated that Liebowitz knew he was lying about the date of his grandfather’s death, but “chose to repeat that lie six, eight, ten times” in court filings that were part of a “long-term campaign of deception.” Seibel remarked that he “double-downed, triple-downed, quadrupled-downed, octupled-down, I don’t know what would come after that.” (nontupled down, Judge) More: “I question Mr. Liebowitz’s fitness to practice,” Seibel said at one point during the hearing.

Seibel said that it seemed Liebowitz thought that if he could drag the court proceedings out, that she would lose interest in him. Referring to the “multiple lies” offered by Liebowitz, Seibel said, “I’m sure he’s disappointed I didn’t go away.” The Smoking Gun reports that , Richard Greenberg, one of Liebowitz’s lawyers, said his client was “not playing with a full deck,” adding that he shared the judge’s “mystification” as to Liebowitz’s behavior. Greenberg stated that Liebowitz “was in a daze” following his grandfather’s death, and than any misrepresentations on the lawyer’s part were not “intentful.” Oh boy. Seibel of course dismissed that claim, noting that it was “completely implausible” that Liebowitz’s “haze” continued for the many months he “tried to weedle his way out of the problem.” Seibel was equally unsparing when Greenberg described Liebowitz as a “young, inexperienced, somewhat immature lawyer.” The judge replied that she was “not really super-sympathetic” to the young lawyer argument, since attorneys know not to lie and understand their ethical responsibilities. She should have also noted the thousands and thousand of claims he has filed.

Noting the significance of a lawyer who “intentionally lies to the court,” Seibel said she has referred the Liebowitz matter to the Grievance Committee for review and possible disciplinary sanctions. Seibel added that her contempt rulings against Liebowitz will require him to disclose the sanctions to other courts and prospective clients.

In a letter to Seibel, Greenberg argued that the contempt findings against Liebowitz will damage his legal career. Near the close of the hearing, Liebowitz briefly addressed Seibel, saying he was “really, really sorry” and that his repeated misstatements were “really an honest mistake.” (JUST SHUT UP DUDE!!)

Seibel told him, “Stop kidding yourself. This was clearly not an honest mistake,” she said. Rather, it was a “concerted campaign of deception.”

During the hearing, Greenberg referred to a letter he submitted yesterday under seal to Seibel. In that communication, Greenberg referred to praise Liebowitz received from photographer’s associations and the growing explosion of his practice as proof that Liebowitz is filling a void in IP litigation. He also mentioned Liebowitz’s plans to seek personal treatment from a Long Island “analyst,” as well as professional help in managing his firm. Referring to those remedial efforts, Seibel suggested that Liebowitz bring the transcript from today’s hearing with him when he arrives for his initial session with a mental health professional. “You need to do some introspection,” she told Liebowitz. “It’s time to start facing the facts.”

Conclusion: I will keep monitoring the case to see if there are any updates or whether the court uploaded any documents. This case is just another in the litany of cases in which Liebowtiz has been slammed and/or sanctioned. The Grievance Committee should take note and pull or suspend his license.

Follow me on Twitter @oscarmichelen

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Q:Can Facebook Be Legally Forced to Police Political Ads? A: No. Mon, 28 Oct 2019 01:10:38 +0000 [...]]]> Facebook CEO Mark Zuckerberg testified before Congress last week and was grilled by various members of that body about FB’s policies towards political ads. In one round of such questioning, Congresswoman Alexandra Ocasio Cortez (D-NY) asked him whether a candidate could target ads to African-American voters that contained a false election date. He answered “No” and explained that this type of false political ad is prohibited by Facebook’s terms of service which do not allow any content that could intentionally disrupt the election or Census process. She then asked whether FB’s terms of service would allow her to falsely advertise that certain GOP congresspersons had voted in favor of her Green New Deal. Zuckerberg answered “Probably.”

And that is the right answer as wrong or sad as that may seem. But how come TV ads can get fined by the FCC if they intentionally espouse false facts about an opponent or an issue? Because they use the public airwaves and are therefore subject to FCC regulation. Cable channels and online content providers are not regulated in that fashion. In fact, cable TV polices itself with respect to profanity and nudity; every cable channel could show nudity and pornography if they so chose but they tend to leave that to premium networks like HBO and Showtime in order to better compete with free TV. That’s their choice.

FB is a private entity; as big as it is, it is not a public utility . Neither is Google. So there is only so much a government can do to regulate its content. That has to be left to the marketplace and public pressure.

Other congresspersons asked him about FB’s Board members’ experience with civil rights and who was in charge of making sure FB had a proper approach to diversity and civil rights. Congresswoman Joyce Beatty (D-OH) in particular grilled him about it and his knowledge of what his team was doing in that arena. But there’s a difference there. The congresswoman appeared to be referring to charges filed by the U.S. Department of Housing and Urban Development earlier this year alleging that Facebook’s advertising tools violated the Fair Housing Act and enabled housing discrimination by preventing certain information about house listings to be sent to African-American FB subscribers. So if your company is enabling the violation of Federal law, you are fair game.

 It would be impossible for FB to have to vet every single political ad for truthfulness. Then the other issue would be what is considered “untruthful?” If I say that my opponent raised taxes by “almost 5%” but he only raised them 3.5% is that truthful? How about if I say my opponent “hardly ever shows up for a vote” if he misses 40% of sessions? What if in my honest opinion I think those are true? How is FB even supposed to create guidelines as to what amounts to truth and what amounts to exaggeration? Or are we also outlawing exaggeration? Does anyone even care about Free Speech anymore?

This does not mean that there aren’t ways to address the problem with lies in political ads. You could run an ad showing the lie or you could alert the media to the lie and have them report it as well. If I were general counsel to FB I would suggest creating a system resembling the Digital Millennium Copyright Act’s system to put a check on copyright infringement. Under the DMCA, websites that allow third parties to post content like videos or pictures are immune from copyright claims if they comply with the DMCA. The DMCA allows a site to register someone as the site’s DMCA agent. If I see my video put up on a site without permission, I can contact that site’s DMCA agent and let them know the person posting it had no right to do so. The content comes down and the poster gets notification. The person posting it has to respond with proof of right or the content stays down. The same could happen with political ads. If an opponent sees a false ad, they notify FB who notifies the person putting up the ad to verify its content. FB makes the determination of whether its a justifiable claim and their decision is final. This will curtail falsity in ads as politicians will be less likely to risk having their content come down; will provide a system for a response; but will not require FB to fact-check the thousands and thousands of political messages going out daily. (Pretty good right? Let me know Mark, I can be available).

Users of social media have become pretty savvy on what is BS and what has legitimacy. It would place too heavy a burden on social media sites to screen every message for veracity. Government regulation of the content on the internet is a slippery slope no one should be excited about going down.

Follow me on Twitter @oscarmichelen

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