Uber Data Breach: Where do we go from here?

Written By Shelby Mann

Uber admitted to paying hackers $100,000 for a 2016 data breach last week. This comes on the heels of several other mishaps, including an FTC order requiring the company to permit to up to 20 years of privacy auditing, prolific workplace sexual harassment, and drivers with criminal records.

Background

On November 21, 2017, Uber CEO Mr. Dara Khosrowshahi announced the company became aware of a data breach in late 2016. Khosrowshahi said while there wasn’t any indication “trip location history, credit card numbers, bank account numbers, Social Security numbers, or dates of birth were downloaded,” the two hackers did download files with information such as the names and driver’s license numbers of approximately 600,000 U.S. drivers, and personal information of 57 million Uber users. That personal information included names, email addresses, and phone numbers.

What Khosrowshahi did not include in the blog post was that the company paid the hackers $100,000 to keep the data breach secret and delete the stolen information. While the breach did not occur under Khosrowshahi’s leadership—Khosrowshahi replaced Uber co-founder Travis Kalanick as CEO in August 2017—Khosrowshahi reportedly learned of the breach in September 2017, just after he took over. Since discovering the breach, Uber’s chief security officer and a deputy were fired for the cover-up response to the hack.

Investigations

Uber announced the data breach a little over a week ago, but several parties are already launching investigations.

  1. On Monday, members of Congress asked the company several questions. Specifically, they asked why Uber didn’t inform customers sooner, whether the company spoke with law enforcement agencies about the matter, and what Uber is doing to help drivers whose sensitive data was stolen. Four Republican senators expressed concerns over Uber’s prior privacy issues, stating this is a serious incident that “merits further scrutiny.” They also asked Uber to provide a detailed timeline to Congress, including the “initial discovery of the incident, forensic investigation and subsequent security efforts, notifications to law enforcement agencies and regulators, as well as any notification to affected customers[.]”
  2. The Federal Trade Commission said it is also “closely evaluating the serious issues” surrounding Uber’s cover-up of the data breach. This comes after the FTC just penalized the company for misleading customers on privacy and security practices.
  3. Five states have separately announced plans to investigate. The attorneys general of Connecticut, Illinois, Massachusetts, Missouri, and New York, have announced they are examining the incident. The City of Chicago, in conjunction with the Cook County state’s attorney, is also suing Uber over the data breach, separately from the State of Illinois.
  4. Data privacy regulators in other countries, such as Italy, Mexico, and the UK, are also investigating. While the exact number of affected international users isn’t known, Uber did confirm the breach included international users.

Additional Lawsuits

Individuals are also suing the ride-hailing company. There are currently three lawsuits in California and Oregon, wherein the plaintiffs allege Uber was negligent in its failure to protect consumer data. The suits further claim having data compromised without a timely notice to harmed consumers. Each of these suits are suing Uber as part of a class action.

Legality of Uber’s Actions

Forty-eight states have laws requiring companies promptly notify consumers when their data is stolen. Alabama and South Dakota are the two who do not. Nevertheless, in many of those 48 states, theft of the Uber drivers’ license numbers would have required prompt public disclosure.

Further, many consumer protection laws in other countries also require disclosure of data breaches. Whether Uber expressly violated these laws will come to fruition following investigations being conducted around the world.

Uber has a couple of tools to use in the face of impending litigation and class-action suit. Arbitration clauses in contracts with drivers and passengers will be an obstacle for those seeking damages. In signing up for the app, users agree to waive their right to go to court. However, in citing the arbitration clause, state and federal regulators may be more likely to sue.

The success of class-action data breach litigation also turns on the type of information stolen. Uber claims only limited information – names, email addresses, cellphone numbers – was stolen, and outside forensic experts saw no indications of stolen sensitive personal information like credit card numbers, bank account information, or Social Security numbers. Further, there is not yet any evidence the stolen information was misused. Consequently, Uber may have a good defense in arguing that consumers cannot show the breach caused actual–or even likely–harm.

More information continues to roll out on a daily basis. It remains to be seen how this event, and other company data breaches like it, will shape the future of privacy laws and policies. For now, Uber users are encouraged to change their passwords, check their accounts for fraudulent activity, and set up credit monitoring just in case.

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Sources Cited

Letter from Sen. John Thune et al., to Dara Khosrowshahi, CEO, Uber (Nov. 27, 2017).

Letter from Sen. Mark Warner to Dara Khosrowshahi, CEO, Uber (Nov. 27, 2017).

Julia Apostle, The Uber Data Breach Has Implications for Us All, Financial Times (Nov. 27, 2017).

Chris Morris, Uber Hack: Here’s How to Find Out If You’ve Been Affected, Fortune (Nov. 22, 2017).

Andrew Blake, Uber Under Investigation in Several States Over Newly Disclosed Data Breach, The Washington Times (Nov. 23, 2017).

Jim Finkle & Heather Somerville, Regulators to Press Uber After it Admits Covering Up Data Breach, Reuters (Nov. 21, 2017, 5:37 AM).

Dara Khosrowshahi, 2016 Data Security Incident, Uber (Nov. 21, 2017).

Tom Krisher & Barbara Ortutay, Will Uber’s Data Breach Cover-up be the Final Straw for Its Most Loyal Users?, Time (Nov. 23, 2017).

Natasha Lomas, Uber Data Breach “Raises Huge Concerns,” Says UK Watchdog, TechCrunch (Nov. 22, 2017), https://techcrunch.com/2017/11/22/uber-data-breach-raises-huge-concerns-says-uk-data-watchdog/.

Natasha Lomas, Uber Agrees to 20 Years of Privacy Audits to Settle FTC Data Mishandling Probe, TechCrunch (Aug. 15, 2017).

Julia Love, Mexican Authorities Seek Information from Uber About Data Breach, Reuters (Nov. 26, 2017, 3:34 PM).

Tony Romm, Uber is Going to Have to Explain to Congress Why it Hid the 2016 Data Breach that Affected 57 Million Users, Recode (Nov. 27, 2017, 3:29 PM).

Hamza Shaban, Uber is Sued Over Massive Data Breach After Paying Hackers to Keep Quiet, The Washington Post (Nov. 24, 2017).

November 2017: Damien Elefante (’99)

Damien Elefante’s path to success has had him traverse thousands of miles, dive into the private and public sectors, and, ultimately, settle down into an area of law he never predicted but greatly enjoys.

Damien Elefante                                                        Deputy Director for the Department of Tax for the State of Hawaii

In his senior year of college at the University of Hawaii, Damien was a legislative intern for a state senator.  He witnessed the legislative process and the politics involved in establishing laws for the State of Hawaii.  It was while working at the legislature that Damien was given advice from a legislator about post-graduate opportunities and the suggestion that he take the LSAT.

Before Damien knew it, he was submitting applications to law schools across the United States and juggling acceptance letters.  Ultimately choosing Syracuse University College of Law for the Technology Commercialization Law Studies curricular program and school status, Damien was ready to rid of his “island fever” and embark upon a new adventure in upstate New York.

Entering law school, Damien wasn’t quite sure what he wanted to practice.  He certainly was interested in the technology and management program, but he remained open to the possibilities of trying out a variety of electives and working with one of the clinics.

Moreover, Damien joined Syracuse Law Review, editing with the staff of Volume 48 and serving as Computer Editor of Volume 49.  Simultaneously, he served as an Associate Editor for the Syracuse Journal of Legislation of Policy.

Upon graduation, Damien went to clerk for Chief Judge James S. Burns of the Hawaii Intermediate Court of Appeals for 16 months.  He recalls that “the clerkship was by far the best job he’s had after passing the bar exam!” Damien’s sole responsibility as an appellate law clerk was to write memoranda based on the briefs and arguments that were presented in all types of civil and criminal cases.  This experience exposed him to the process and procedures involved in litigation that formed the foundation for his litigation career.

He began his litigation experience  at Hisaka Stone Goto Yoshida Cosgrove & Ching, working as an associate attorney for a year, until he accepted an offer to be a Deputy Attorney General for Hawaii.

He served as a Deputy Attorney General for almost 14 years, representing the Department of Taxation (DoTAX) in all legal matters, until he found himself on a path to his current position, purely by chance.

“It was during my twelfth year, while I was deciding whether I should stay with the Attorney General’s office or change,” he said. “I decided to apply for various positions, one of which was the Compliance Coordinator for DoTAX.”

Like traveling from Hawaii to Syracuse, or jumping from private to public sector, Damien took on the next adventure from being an attorney to being an administrator.  He performed the job of Compliance Coordinator for DoTAX with enthusiasm and a passion for excellence. Little did he know, others had noticed.

“Six months in, the Deputy Director at the time decided to leave,” he said. “I guess during my six-month tenure, the Director was so impressed with my performance that she asked if I would consider being Deputy Director.  I agreed to be a candidate for the position, and then interviewed with the Governor[.]”

In 2016, Damien was confirmed by the legislature as the Deputy Director of DoTAX for the Hawaii State Government. Today, Damien spends his time managing DoTAX’s administrative and operational activities to enforce the tax laws of the state and implement DoTAX’s mission to “fairly administer the tax laws of the state and hold accountable those who do not pay for their fair share of taxes.”

So, what advice does Damien have for students?

First, network. “Get to know your fellow students, especially if they are planning to practice in the state that you are planning to practice in,” he said.  “At some point in your career, you will probably see them again in some type of work-related capacity.”

Second, realistically prepare for life after law school.  Take classes that will prepare you as much possible for the type of area you want to pursue as a career.  Further, think about more than just resolving cases in front of a judge or jury.

“The most significant cases that have left an impression [on me] are the cases where I was able to negotiate some type of settlement,” he said.  “Thinking back, the same amount of ‘effort’ and motivation is required to settle as  litigating a case in court.”


This story was written by Legal Pulse Editor Samantha Pallini and is the fifth installment of Syracuse Law Review’s new monthly feature, “Alum of the Month.” Stay tuned for next month’s feature on another noteworthy Syracuse Law Review alumnus.


 

Diplomacy or Fake News: How Much Did Presidential Intervention Help LiAngelo Ball and His UCLA Teammates?

Written By Sam Hauser

Background

President Donald J. Trump engaged in a Twitter controversy on November 19, 2017, when he directed one of his tweets at LaVar Ball, the outspoken father of recently arrested UCLA freshman LiAngelo Ball. President Trump’s tweet read as follows:

“Now that the three basketball players are out of China and saved from years in jail, LaVar Ball, the father of LiAngelo, is unaccepting of what I did for his son and that shoplifting is no big deal. I should have left them in jail!”

This came after LaVar Ball refused to acknowledge President Trump’s role in the release of his son from Chinese custody, despite an earlier display of gratitude from LiAngelo himself. Aside from the fact that these players were not – in fact – in jail, but rather on house arrest in their Hangzhou hotel, numerous news outlets were quick to analyze the assertion that these players were headed for ten-year jail sentences absent President Trump’s intervention.

The Incident

On November 7, 2017, LiAngelo Ball, along with UCLA teammates Cody Riley and Jalen Hill, were accused of shoplifting Louis Vuitton sunglasses from a mall near the UCLA men’s basketball team’s hotel in Hangzhou, China. The three players were arrested, subsequently released on bail, and ordered to remain in their hotel until the conclusion of the legal process.

Presidential Intervention

President Trump, who happened to be on his way to China at the time of the incident, allegedly spoke with Chinese President Xi Jinping about the incident, asking for prompt resolution of the matter.

Resolution

On November 14, 2017, about one week after the original incident took place, the three UCLA players were on a plane back to Los Angeles. In its statement announcing the players’ return, the PAC 12 Conference thanked both President Trump and the U.S. State Department for their work in reaching a resolution.

Did President Trump Really Save These Players from Substantial Prison Time?

Given the high-profile nature of this case, many media outlets were quick to either concur or dissent with President Trump’s estimation of the magnitude of his assistance to these players. The Criminal Law of the People’s Republic of China sets the framework for analyzing the length of the potential prison sentence for these players.

Criminal Law of the People’s Republic of China: Which Article Are These Players Culpable Under?

Under Chapter V: The Crime of Encroaching on Property, Articles 263 and 264 describe situations in which property has been wrongfully taken. Article 263 describes situations in which property has been “robb[ed] . . . using force, coercion, or other methods.” Article 264 describes situations in which a person has stolen “relatively large amounts of public or private property.” In determining which of these two Articles best fits the UCLA players’ situation, it is necessary to determine the definition of the term “rob.” If this term is defined as it is traditionally defined in American criminal justice systems – “felonious taking of personal property . . . accomplished  by means of force or fear” – then it is likely that the accused players would be evaluated under Article 264, in which the term “steal” is used. Although the terms “steal” and “rob” are used interchangeably in other parts of the Criminal Law (see Articles 239 & 240), robbed is most likely meant to represent the traditional American definition here because of the qualifying statement that “force, coercion or other methods” be employed to effectuate the taking of property.  This prompts the conclusion that the actions of these players would be culpable under Article 264.

What is the Likely Sentence Under Article 264?

Under Article 264, a person’s punishment for stealing property is divided into three tiers, according to the severity of the offense, namely, the value of property taken. Those stealing relatively large amounts of property will receive sentences of fewer than three years, or criminal surveillance, and can be fined in addition to, or in lieu of, these other punishments. Those caught stealing large amounts of property receive prisons sentences of 3 to 10 years, in addition to fines. Those caught stealing extremely large amounts of property would be sentenced to 10 years or more in prison. Evidently, there are no bright-line rules as to which of these tiers a particular offense might fall into. Despite the fact that Louis Vuitton sunglasses retail for anywhere between $435 and $1990, it is unlikely that theft of such an item would constitute anything more than “large amounts or property,” at the very worst.

Administrative Punishment

Given the high degree of ambiguity in the Chinese Criminal Law pertaining to shoplifting offenses, and the relative unimportance of such an offense to the Chinese government, it is likely that this type of incident, absent Presidential intervention, would be handled through a mechanism known in China as administrative punishment. The value of goods taken determines whether the punishment can be administrative or criminal, according to a statement given by Ira Belkin, a former federal prosecutor and adjunct professor of law at NYU, to USA Today. Administrative punishment generally results in “some combination of up to 15 days in jail, fines and warnings,” according to Michael McCann, Sports Illustrated’s legal analyst.

Conclusion

The lack of clarity in the boundaries of various tiers of punishment in the Chinese system make it difficult to determine exactly how much punishment President Trump should take credit for saving these individuals. While an administrative punishment might have been the most likely recourse for such an offense, the international diplomatic consequences of such a high-profile individual being caught in the fray might have escalated this matter to the criminal punishment system. In that event, though the likely sentence would not have been 10 years, as President Trump initially indicated, his diplomatic actions may have saved these UCLA students close to 3 years of prison time, depending on the ultimate value of the items taken.

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Sources Cited

Criminal Law of the People’s Republic of China (promulgated by the Standing Comm. Nat’l People’s Cong., July 1, 1979, amended March 14, 1997), art. 263-64, 1997.

Louis Vuitton Sunglasses (last visited Nov. 20, 2017).

Marissa Payne, Des Bieler, Matt Bonesteel, & Cindy Boren, LiAngelo Ball, two other UCLA players released on bail after shoplifting arrest in China, Wash. Post, Nov. 8, 2017.

Mark Landler & Michael D. Shear, How Trump Helped Liberate U.C.L.A. ‘Knuckleheads’ From China, N.Y. Times, Nov. 14, 2017.

Matt Bonesteel & Cindy Boren, I should have left them in jail!’: Trump fires back at LaVar Ball for saying he did nothing to help UCLA players in China, Wash. Post, Nov. 19, 2017.

Matt Ellentuck, LiAngelo Ball and 2 other UCLA basketball players arrested in China, explained, SB Nation, Nov. 19, 2017.

Michael McCann, LiAngelo Ball, UCLA Teammates Could Face Chinese Jail Time, Sports Illustrated, Nov. 7, 2017.

Press Release, Pac-12 Conference, Statement from Pac-12 Commissioner Larry Scott on UCLA men’s basketball student-athletes returning home (Nov. 14, 2017) (on file with author).

Robbery, Black’s Law Dictionary (2d ed. 1910).

Suzannah Gonzales & Arshad Mohammed, UCLA basketball players arrested in China could stay for months: ESPN, Reuters, Nov. 8, 2017.

Tom Schad, LiAngelo Ball, other UCLA players unlikely to face severe punishment, Chinese law experts say, USA Today, Nov. 8, 2017.

Photo courtesy of Business Insider.

 

Forgetting the Crime: Death Penalty and Memory

Written by Cynthia Moore

On November 6, 2017, the Supreme Court decided Dunn v. Madison and held that, despite the inability to remember his crime, Vernon Madison was eligible to be executed by the State of Alabama.

Background

More than 30 years ago, Vernon Madison snuck up behind Julius Schulte, a police officer, and shot him twice at close range, killing him. Madison has been awaiting execution since 1985, when a jury convicted him of capital murder. In prison, Madison had a series of strokes, which caused him to suffer from vascular dementia, blindness, slurred speech, incontinence, and an inability to walk on his own. The strokes also caused him to forget the crime he was convicted of.

Procedural History

In 2016, nearing his execution date, Madison petitioned the trial court to suspend his death sentence, arguing that he had become incompetent for execution. The trial court denied his petition, citing two major Supreme Court cases, Ford v. Wainwright and Panetti v. Quarterman. Ford prohibited execution of the insane, and Panetti required prisoners to have a comprehension of the meaning and purpose of the punishment in order to be eligible for execution.

After hearing testimony from two psychologists who examined Madison’s competence, the trial court held that Madison was not entitled to relief because he failed to show that he “suffers from a mental illness which deprives [him] of the mental capacity to rationally understand that he is being executed as a punishment for that crime.” Additionally, the court held that he understood three important facts: (1) he would be executed for the murder he committed; (2) the State sought retribution for this crime; and (3) he would die when executed.

Madison subsequently petitioned the District Court for the Southern District of Alabama for a writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act of 1996, arguing that his mental condition barred him from execution. This Act entitles state prisoners to relief if they can show that the “state court’s decision was ‘so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement’” —a demanding standard.

The District Court denied his petition, reaffirming the state court’s holding. However, the Eleventh Circuit granted a certificate of appealability and reversed the District Court’s ruling. Alabama appealed and the Supreme Court unanimously reversed the Eleventh’s Circuit’s ruling, holding that Madison could be executed by the State of Alabama because he recognized that he would be executed as punishment for the murder he was convicted for. The Court also held that “[n]either Panetti nor Ford ‘clearly established’ that a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case.”

Constitutional Protections

The Eighth Amendment secures the right to be free from cruel and unusual punishment, which courts have interpreted to prohibit states from carrying out the death sentence on individuals who are not able to “rationally understand” why he/she is being punished (a standard applied by the Supreme Court in Panetti v. Quarterman). In Panetti, the Court held that a prisoner must have a rational understanding of the punishment, because without this understanding, it would undermine the purpose of executions. Nonetheless, the Supreme Court refused to set down a broad rule governing all competency determinations.

Concurrences

Justice Ruth Bader Ginsburg, Justice Stephen Breyer, and Justice Sonia Sotomayor all concurred with the majority opinion in Madison, noting that this case stands for a “substantial question not yet addressed by the Court.” They noted that the limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 prevented consideration of whether the death penalty may be imposed on a person who has no memory of the offense.

Justice Breyer wrote a separate concurrence, stating that this case represents the problems with the administration of the death penalty. He argued that rather than focusing on specific circumstances of aging prisoners, it would be better to call into question the constitutionality of the death penalty itself. This is not the first time that Justice Breyer has questioned the constitutionality of the death penalty. He is known for urging reconsideration of the death penalty, opining in 2016 that it is “unreliable, arbitrary and shot through with racism.”

The Death Penalty in the United States

While 16 states do not have the death penalty, as of 2015, there were still 2,881 individuals sentenced to death in 2015. Moreover, there were 26 executions and 82 removals from death sentences by means other than execution in 2015. The Department of Justice has noted, however, that death sentences seem to be on a downward trend, as this is the 15th consecutive year in which the number of inmates sentenced to death decreased.

Aging on Death Row

As of 2013, almost one third of the oldest offenders (age 65 or older) were serving sentences of life imprisonment or were awaiting the death penalty. Aging in prison will likely become a more prominent issue, as the population aged 65-84 in the U.S. will grow from 11.3% in 2010 to an estimated 16.4% in 2050. The percentage of individuals aged 85 and over is estimated to grow from 1.8% in 2010 to 4.5% in 2050.

Alzheimer’s disease, a degenerative brain disease, is common among older adults. It is the most common cause of dementia, which is characterized by decline in memory and other cognitive skills. The projected number of adults age 65 and older with Alzheimer’s disease is estimated to almost triple from 4.7% in 2010 to 13.8% in 2050.

Given these trends, it is likely that this issue will be heard by the Supreme Court again very soon.

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Sources Cited

Dunn v. Madison, No. 17-193, 2017 U.S. LEXIS 6630 (2017).

Panetti v. Quarterman, 551 U.S. 930 (2007).

Ford v. Wainwright, 477 U.S. 399 (1986).

Madison v. Comm’r, Ala. Dep’t of Corr., 851 F.3d 1173 (11th Cir. 2017).

Ex Parte Madison, 718 So. 2d 104 (Ala. 1998).

Alzheimer’s Ass’n, 2016 Alzheimer’s Disease Facts and Figures, 5, 23 (2016).

Ann Carson & William J. Sabol, U.S. Dep’t of Just., Aging of the State Prison Population, 1993–2013, at 1, 5 (May 2016).

Sandra L. Colby & Jennifer M. Ortman, U.S. Dep’t of Com., The Baby Boom Cohort in the United States: 2012 to 2060, at 9 (May 2014).

Tracy Snell, U.S. Dep’t of Just., Capital Punishment, 2014–2015, at 1 (May 2017).

Alisa Johnson, SCOTUS Allows Execution of Prisoner with No Memory of Crime, Bloomberg BNA (Nov. 6, 2017).

Adam Liptak, Once Again, Justice Breyer Presses Case Against Death Penalty, N.Y. Times (Dec. 12, 2016).

Adam Liptak, Justices Allow Execution of Inmate Who Cannot Recall His Crime, N.Y. Times (Nov. 6, 2016).

Is Alcohol the New Tobacco?

Written By Jordan J. O’Connor

On October 25, 2017, New York City’s Metropolitan Transportation Authority (MTA) decided to ban all alcohol advertisements on its public transportation, set to take effect January 1, 2018. While this may only be a regional change, New York City’s MTA is the country’s largest transportation authority, and many people are wondering whether this will spark country-wide changes, similar to the ban on tobacco advertisements in the early 1990s.

How are these bans implemented?

Alcohol bans by transit authority have been enforced through three levels of policymaking: (1) contract requirement, (2) agency policy, and (3) government policy. Contract requirements are stated in the contract between the MTA and the advertiser. Agency policies are formally adopted by the administering body of the MTA, i.e., the board of directors. Finally, government policies are codified by the government body that has dominance over the MTA. This decision to ban alcohol advertisement on New York City’s public transportation came from the board of directors of the MTA.

New York City is, by no means, a trailblazer in this arena. Consequently, advocacy groups and opponents alike have been looking to other cities to make their best estimation as to how successful this ban will or will not be.

For example, stemming from a gubernatorial executive order, Maryland sought to prohibit alcohol advertisements on public transportation state-wide. Similarly, big cities such as Los Angeles, Boston, and Philadelphia imposed bans on alcohol advertising.

Though the aforementioned bans remain intact, two different large cities have overturned their bans. Washington D.C. overturned its ban on alcohol advertising in 2015, citing economic necessity as the reasoning. Chicago Transit Authority did the same; however, it chose to keep some restrictions in place, such as continuing to prohibit alcohol advertisements on buses and preventing alcohol advertisements from exceeding 9.99% of total advertising on the Chicago transit system at any one time.

So, is New York City’s ban a good thing?

Advocates of the ban have long compared it to tobacco ads, claiming that the advertisements are encouraging underage drinking. Alcohol ads, like the previous tobacco ads, portray typical users as attractive, young, and healthy people who like to have fun. Advocates have also argued that the ads target minority and lower-income communities, as was previously done by the tobacco companies.

In addition, one of the groups that was pushing for the ban, “Building Alcohol Ad-Free Transit,” found ad placements that it felt had the potential for sending harmful messaging to children who use the MTA as their means of transportation to school. Specifically, the group’s website displays examples, such as one where a poster for the kid-friendly movie “The Lorax” appears next to an ad for Michelob Ultra.

In contrast, opponents of the ban state that the real party affected by the ban is the alcohol industry. “Science and research show that there is no benefit to banning this type of advertising,” Jay Hibbard, vice president of government relations for the Distilled Spirits Council, said in an interview with the New York Times. “This is not advertising on school buses….This is advertising on a public transportation system.”

Opponents also argue that, statistically, New York’s underage drinking has declined by over 20 percent in the last ten years, and binge-drinking has reached an all-time low. Opponents use these and other facts to assert that it is the parents, and not the advertisements, that have the greatest influence on underage drinking.

So, will the New York City MTA ban on alcohol advertising stand the test of time, or will it crumble? Only time will tell.

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Sources Cited

Luis Ferré-Sadurní, M.T.A. Will Ban Alcohol Advertising on Buses and Subways, N.Y. Times (Oct. 25, 2017).

Danielle Furfaro, MTA will ban all alcohol advertisements from stations, N.Y. Post (Oct. 25, 2017).

Lyndsey Layton, New FDA rules will greatly restrict tobacco advertising and sales, Wash. Post (Mar. 19, 2010).

Paul Dugan, Metro board clears way for alcohol advertising in transit system, Wash. Post (Nov. 19, 2015).

E.J. Schultz, As alcohol ads sprawl elsewhere, New York buses and trains go dry, AdAge (Oct. 26, 2017).

Alcohol Justice, These Bus Ads Don’t Stop For Children: Alcohol Advertising on Public Transit (Oct. 2013).

Nixon signs legislation banning cigarette ads on TV and radio, History: This Day In History.

Disc. Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509 (6th Cir. 2012).

Family Smoking Prevention and Tobacco Control Act, H.R. 1256, 111th Cong. (2009).

Is There Something Arbitrary about the NFL’s Arbitration Process?

Written By Tessa J. Kajdi

Background

Philadelphia Eagles lineman, Lane Johnson (“Johnson”), served a four-game suspension in 2014 for violating the National Football League’s (“NFL”) Policy on Performance-Enhancing Substances. Subsequently, during the 2016 season, Johnson was issued a 10-game ban by the NFL, which was upheld by the appointed arbitrator. This 2016 arbitration proceeding is the source of conflict between Johnson, the NFL, and the NFL Players Association (“NFLPA”). On January 6, 2017, Johnson sued both the NFL and the NFLPA in the U.S. District Court for the Northern District of Ohio. Upon a motion of the NFLPA, Johnson’s suit was moved to the U.S. District Court for the Southern District of New York in July of 2017. He subsequently filed a memorandum of law in support of his motion to vacate the arbitration award with the Southern District of New York on October 26, 2017.

In his filings, Johnson alleges that the NFLPA “disregarded the policy’s express arbitrator provisions,” and that the NFL as well as the arbitrator failed to disclose a conflict of interest between the arbitrator’s law firm and the league. Johnson alleges this failure to follow policy was a breach of duties under the Collective Bargaining Agreement (“CBA”) of the NFL and a breach of fair representation by the NFLPA. As to the NFL’s alleged breach, Johnson claims that the league failed “to allow an independent toxicologist to review Johnson’s alleged positive ‘B’ sample,” and, among other things, failed “to provide all relevant documents related to the dispute to Johnson’s attorneys for review.”

However, according to the NFLPA, Johnson “waived his objections” to the arbitrator “when consenting to him as the arbitrator.” The union contends that Johnson’s complaint should be dismissed for two additional reasons. One, Johnson knew of the arbitrator’s affiliation with a law firm that previously worked with the NFL. Two, Johnson has not proven that the arbitrator himself “worked on any of the matters the firm has handled for the NFL.”

NFL’s Policy on Performance-Enhancing Substances

The collectively-bargained NFL Policy on Performance-Enhancing Substances sets out clear provisions for “procedures in response to positive tests or other evaluation[s].” Additionally, it discusses “discipline for violations of law and other documented evidence-based violations” and shows a step-by-step process for related disciplinary actions.

Conflicting Precedents

Recently, in the NFL, there have been two methods for players challenging arbitration rulings they find unfair. The first method, evidenced by players like Tom Brady and Ezekiel Elliott, is to sue the NFL to challenge the arbitration process with the NFLPA’s support. The second and rarer method, evidenced by Mike Pennel and Lane Johnson, is to sue both the NFL and NFLPA.

In May 2015, Tom Brady was given a four-game suspension by the NFL for violating league policy. Brady and the NFLPA appealed the suspension, and the NFL agreed to have Commissioner Roger Goodell oversee the appeal. After Goodell upheld the suspension, the NFLPA and Brady sued the NFL in federal court, alleging that Goodell’s oversight was biased and violated Brady’s right for a fair arbitration hearing. The district court overturned Brady’s suspension in September 2015. However, this ruling was overturned by the Court of Appeals, which stated that Goodell was acting within his power under the CBA and, therefore, Brady was not deprived of his right to due process. Brady and the NFLPA did not appeal the decision to the Supreme Court.

Ezekiel Elliott was suspended by the NFL in August 2017 for violating the league’s domestic violence policy. Elliott appealed his suspension, and the NFL upheld it. Elliott and the NFLPA have since sued the NFL, asking for an injunction on Elliott’s suspension until the court has determined whether the NFL properly suspended Elliott. The NFL moved to dismiss the injunction request and decide the issue of whether the NFL has the power to suspend Elliott.

Mike Pennel was suspended for four games by the NFL in February 2016 for violating the NFL’s Policy on Performance-Enhancing Substances. He subsequently appealed the suspension. On November 30, 2016, Pennel sued the NFL and the NFLPA. He alleged that the NFL did not maintain a pool of three arbitrators to hear his appeal as required by the Policy on Performance-Enhancing Substances. At the time of the appeal, the NFL only had two arbitrators on the panel. The NFL added a third arbitrator after Pennel’s complaint. Subsequently, Pennel voluntarily dismissed his complaint against the NFL and the NFLPA.

Potential Impacts of Johnson’s Lawsuit

Although the NFLPA has been sued before by a player it represents, this method of challenging the arbitration process in the NFL is still uncommon. If Johnson is able to prevail on his claims against the NFL and the NFLPA, this may spark a trend in the way players challenge arbitration decisions in the future. Furthermore, Johnson’s lawsuit and its decision may affect future collective bargaining agreements between the NFL and NFLPA, in addition to influencing whether players trust the NFLPA to support them in dispute resolution.

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Sources Cited

Zachary Zagger, Union Defends NFL Arbitration In Drug Suspension Suit, Law 360, Oct. 26, 2017.

National Football League, Policy on Performance-Enhancing Substances (2016).

Marc Edelman, Lane Johnson’s New NFL Lawsuit Is Page Out Of A-Rod Playbook, Forbes, Jan. 7, 2017.

Michael McCann, Lane Johnson’s bold move to sue his own union is rare, but not unprecedented, Sports Illustrated, Jan. 11, 2017.

Ben Volin, Tom Brady officially files suit against the NFL, Boston Globe, July 29, 2015.

Zachary Zagger, NFL, Union Add Arbitrator In Drug Row, But Battles Remain, Law 360, Dec. 2, 2016.

Zachary Zagger, Packers Player Drops NFL Drug Suspension Dispute, Law 360, Dec. 19, 2016.

John Breech, Roger Goodell Will Hear Tom Brady’s Appeal; No Neutral Arbitrator, CBS Sports, May 15, 2015.

Photo courtesy of CBS Sports.