NSA Axes “About” Collection: Win for Privacy Advocates, Loss for Us All?

–by Taylor Henry

Abstract:

This article discusses the NSA’s recent policy change to its electronic surveillance program, under Section 702 of the FISA Amendments Act (FAA), to stop collecting electronic communications that are “about” its targets. This policy change should result in the collection of fewer communications that are purely between American citizens, but it also may have a detrimental effect on Section 702’s use as a counterterrorism tool.

Citations:

FISA Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436 (codified in scattered sections of 50 U.S.C.); Privacy and Civil Liberties Oversight Board, Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act 10 (2014), https://www.pclob.gov/library/702-Report.pdf; Tim Cushing, NSA Makes Pitch for Section 702 Approval While its 702 Requests Aren’t Being Approved by the Court, techdirt (Apr. 27, 2017, 10:45 AM), https://www.techdirt.com/articles/20170424/16521837225/nsa-makes-pitch-section-702-approval-while-702-requests-arent-being-approved-court.shtml; Report of the Director of the Administrative Office of the U.S. Courts on Activities of the Foreign Intelligence Surveillance Courts for 2016, U.S. Courts (2016), http://www.uscourts.gov/sites/default/files/ao_foreign_int_surveillance_court_annual_report_2016_final_0.pdf; Robert Chesney, Can NSA Drop “About” Collection Without Gutting “To/From” Collection?, Lawfare (Apr. 28, 2017), https://lawfareblog.com/can-nsa-drop-about-collection-without-gutting-tofrom-collection; Charlie Savage, N.S.A. Halts Collection of Americans’ Emails About Foreign Targets, N.Y. Times (Apr. 28, 2017), https://www.nytimes.com/2017/04/28/us/politics/nsa-surveillance-terrorism-privacy.html?_r=0; Press Release, NSA, NSA Stops Certain Foreign Intelligence Collection Activities Under Section 702 (Apr. 28, 2017), https://www.nsa.gov/news-features/press-room/press-releases/2017/nsa-stops-certain-702-activites.shtml; Statement of Elizabeth Goitein, U.S. House of Representatives Committee on the Judiciary (Mar. 1, 2017), https://judiciary.house.gov/wp-content/uploads/2017/02/Goitein-Testimony.pdf.

***

Although most Americans recognize the name Edward Snowden, few are likely to recognize the name of a government program that is responsible for the collection of hundreds of millions of electronic communications per year. This program, Section 702 of the FISA Amendments Act (FAA), has recently undergone an abrupt and dramatic policy change that has significant consequences for the reauthorization of the FAA, which is set to expire in December 2017.

Section 702 is a complicated but crucial intelligence-gathering tool, as it authorizes electronic surveillance conducted by the National Security Agency (NSA). Essentially, the NSA collects the contents of electronic communications, including emails and text messages, where the “target” is reasonably believed to be a non-U.S. person located outside the United States. “U.S. persons” include U.S. citizens, U.S. permanent residents, and virtually all U.S. corporations. Therefore, the government cannot use Section 702 to intentionally spy on American citizens located in the U.S., or anyone located within the U.S., and the targeting must be done with the purpose of acquiring foreign intelligence information.

This statutory limitation has not shielded Section 702 from criticism by privacy advocates and national security experts. In reality, countless Americans’ communications are swept up in 702 collection, stored by the government, and can be “queried” by government agencies. This phenomenon is called incidental U.S. person collection. It can occur when a U.S. person is communicating with a non-U.S. person who has been targeted, or when two non-U.S. persons are discussing a U.S. person. Because a U.S. person was not intentionally targeted by the NSA, this collection is lawful under 702, and the information may be utilized by the government.

Another important aspect of the Section 702 program is querying. “Querying” occurs when a government analyst searches 702 collected data with identifiers, such as an email address. The most problematic aspect of 702 collection is arguably the FBI’s ability to query 702 data to find evidence of domestic crimes, which many privacy advocates have criticized as being a “backdoor loophole” around the Fourth Amendment warrant requirement. This is because a probable cause warrant is not required for electronic surveillance under Section 702.

Each year, the government provides the Foreign Intelligence Surveillance Court (FISC) with its targeting and minimization procedures, which FISC then approves. Unlike the warrants used by domestic law enforcement, 702 certifications are not individualized and are not required to meet any probable cause standard. FISC is only required to approve the targeting and minimization procedures.

The FISC releases the amount of certifications it grants each year. This year’s annual report disclosed that the FISC had not approved any 702 certifications yet, even though the current 702 certification had expired.  It wasn’t until a few days later that the New York Times reported that the FISC had been dragging its feet because the NSA had self-reported several inadvertent “compliance incidents.” In response to the FISC’s reluctance, the NSA announced that it would end a particularly controversial part of the 702 program: “about” collection.

“About” collection occurs when the NSA obtains communications where neither the sender nor receipt is a target of collection. “About” collection is controversial because of the relatively high risk that such collection will result in acquiring purely domestic communications. Neither the individual involved, nor the conversation held is required to be a target in order for the collection to be lawfully acquired by the NSA, so long as some part of the content of the communication mentions a target identifier. When put in context within the broad scope of Section 702–that it is not technically limited to counterterrorism efforts–“about collection” means that emails could be lawfully collected when they concern the “merits of [NAFTA] or whether the United States should build a wall along the border with Mexico,” simply because such conversations “relate[] to the conduct of foreign affairs.”

While this policy change sounds like a win for everyone, there is reason to be concerned by this change. Section 702 is a counterterrorism tool that is frequently used by the government. The NSA estimates that over 25% of its reports concerning international terrorism include information based on Section 702 collection. However, until this recent elimination of the “about collection,” the NSA had maintained that it was impossible to stop collecting “about” communications without eliminating a substantial amount of the “to/from” communications it seeks.

In its press release, the NSA noted that this limitation still exists, but that it is outweighed by privacy concerns. While some national security experts are concerned about how this change might lessen the effectiveness of Section 702 as a counterterrorism tool, this policy will certainly be a topic of discussion in Congress’ up

New York’s Highest Court Requires Hearings for Final Child Custody Determinations

–by Shannon Mumaw

Sources:

S.L. v. J.R., 56 N.E.3d 193 (2016); Daniel Leddy, Major Custody Ruling by New York’s Highest Court, silive.com (June 20, 2016, 12:17 PM), http://www.silive.com/opinion/danielleddy/index.ssf/2016/06/major_custody_ruling_by_new_yo.html.

Abstract:

The New York Court of Appeals held that in general, final custody determinations should only be made after a full and complete evidentiary hearing.

***

Summary:

The mother and father, who were both attorneys, had been married for nearly fifteen years before the mother commenced divorce proceedings against the father and sought full custody of their two minor children. The father, who had left the marital home months before, returned to find that the mother had broken the windows and burned his clothes. The father filed an order to show cause seeking temporary sole legal custody of the children. In addition to incidents of harassment, the father alleged he feared for the children’s safety because the mother engaged in extramarital affairs and abused prescription medication and alcohol.

The trial level court granted the father temporary sole interim legal and physical custody with supervised visitation for the mother, which was later continued by the issuance of a second order. After a court-appointed forensic evaluator concluded that the father was the more “psychologically stable” parent, the court granted full custody to the father without a hearing. Additionally, the court suspended visitation for more than five months, noting that the mother “acknowledged her involvement in many incidents of disturbing behavior.”

In unanimously affirming the lower court’s decision, the Appellate Division, Second Department, held that although custody determinations “generally may only be made following a full and comprehensive evidentiary hearing . . . no hearing is necessary where, as here, ‘the court possesses adequate relevant information to enable it to make an informed and provident determination as to the child’s best interest.’”

On June 9, 2016, the New York Court of Appeals overturned the Appellate Division and held that final custody determinations should only be made after a full hearing is conducted. However, the court declined to fashion a catchall rule mandating a hearing in every case. In its opinion, the court stated that by applying the “undefined and imprecise ‘adequate relevant information’ standard,” the lower courts effectively relied on hearsay statements and the conclusion of a court-appointed forensic evaluator whose opinions and credibility were untested. The court went on to say that such a standard does not adequately protect a parent’s fundamental right to control the upbringing of his or her child.

Further, the court held that taking into consideration the governing principle in all custody determinations­­—the best interest of the child—there are no absolutes; rather custody determinations must be entrusted to the discretion of the trial court.

Does Charging Bull Artist Arturo Di Modica have a Claim Under VARA?

–by Veronica Ramirez

Sources: Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128, 129 (1st Cir. 2006); 17 U.S.C. § 106A (2012); Leonard D. DuBoff, Christy A. King, Michael D. Murray, and James A.R. Nafziger, Art Law Deskbook: Vol. 1 Artists’ Rights in Intellectual Property, Moral Rights, and Freedom of Expression, Part 7 (Matthew Bender); Kriston Capps, Why Wall Street’s Charging Bull Sculptor Has No Real Case Against Fearless Girl, The Atlantic (Apr. 14, 2017), https://www.theatlantic.com/entertainment/archive/2017/04/wall-streets-charging-bull-sculptor-has-no-case-against-fearless-girl/523086/; History, Charging Bull,  http://chargingbull.com/chargingbull.html (last visited Apr. 29, 2017); Jamiles Lartey, ‘Charging Bull’ Sculptor Calls for New York to Remove ‘Fearless Girl’ Statue, The Guardian (Apr. 12, 2017, 3:00 PM) https://www.theguardian.com/us-news/2017/apr/12/charging-bull-artist-remove-fearless-girl-arturo-di-modica.

Abstract: On April 12, 2017, artist Arturo Di Modica stated that the “Fearless Girl” statue infringes on his artistic rights. Under the Visual Artists Rights Act (“VARA”), he may have a viable claim; however, because the “Fearless Girl” alters the message, and not the physical structure of the “Charging Bull,” it is unlikely that he would prevail.

***

After the stock market crash of 1987, artist Arturo Di Modica spent two years creating a sculpture that symbolized the resilience of American people and the promise of a booming economy. On December 15, 1989, Di Modica erected the iconic “Charging Bull” sculpture outside of the Stock Market Exchange without a permit, at the foot of a then-installed Christmas tree, which quickly became a tourist attraction. The New York Stock Exchange removed the sculpture the next day.

Shortly after its removal, the “Charging Bull” was installed in a different Bowling Green location, where it still stands today. As of March 7, 2017, however, the “Charging Bull” shares the traffic island with a recently installed sculpture, the “Fearless Girl” by Kristen Visbal. Visbal, unlike Di Modica, was commissioned by State Street Global Advisors to spotlight the need for gender diversity at the leadership level on Wall Street. Like Di Modica, however, she erected “Fearless Girl” overnight on March 7, 2017, the day before International Women’s Day, as a temporary installation. The statue stands defiantly in front of the “Charging Bull,” and it is set to remain there until February 2018.

Taken together, both sculptures convey a different message than originally conceptualized. The meaning of the “Charging Bull,” a symbol of resilience, has been modified by the addition of the “Fearless Girl” and should be removed, according to Di Modica. Seeing as the statues share a traffic island in Bowling Green, the “Fearless Girl” represents the obstacles presented in a male-dominated field via the young girl confidently confronting the symbolic obstacle of the “Charging Bull.” Given this sudden shift in what the “Charging Bull” originally represented, Di Modica voiced that the “Fearless Girl” statue violates his copyright rights.

The legal basis for a claim like Di Modica’s falls under the Visual Artists Rights Act (“VARA”) of 1990, which, among other things, allows artists like Di Modica “to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to [the artist’s] reputation.” Works protected under this statute include works created after the statute’s enactment as well as works created before it that an artist still owns the copyrights to. Although Di Modica’s sculpture was created and installed in 1989, before VARA’s enactment, if Di Modica still owns the copyright or has not waived his rights, he could invoke VARA as a legal basis for his claim of copyright infringement.

Even if Di Modica does satisfy one of the requirements mentioned above, Di Modica is unlikely to prevail on the substance of his claim. In a press conference held on April 12, 2017, Di Modica’s attorney mentioned that the “Fearless Girl” was “incomplete without Mr. Di Modica’s Charging Bull, and as such it constitutes a derivative work.” Di Modica’s attorney also mentioned that the “Fearless Girl” statue was fearless because she stood in front of Di Modica’s “Charging Bull.” Thus, in Di Modica’s view, the “Fearless Girl” modifies his work.

Modification typically involves altering the work itself, such as partially covering a work of art. To date, federal courts have not considered whether a modification includes alterations external to a protected work’s surroundings, such as the installment of another statue in the same area. Since the “Fearless Girl” alters the message of the “Charging Bull,” but not the physical sculpture of the “Charging Bull,” it is unlikely that Di Modica could prevail on his claim.

Additionally, Di Modica’s claim raises an issue concerning site-specific art. Under VARA, site-specific art claims assert that the removal of a work of art from a particular place violates an artist’s rights. “In a work of ‘site-specific art,’ one of the component physical objects is the location of the art. To remove a work of site-specific art from its original site is to destroy it.”

Applying this to Di Modica’s situation, it is unlikely that Di Modica could prevail on his claim simply because his “Charging Bull” is being modified by another object in its vicinity, rather than being removed from its physical location. Since the “Charging Bull” is not being removed, the “Charging Bull” is not necessarily destroyed by the addition of the “Fearless Girl.” Additionally, if the Second Circuit adopts a similar view of indifference to that of the First Circuit in Phillips, then the site-specific argument may prove futile.

Ultimately, Di Modica’s attorneys have not filed suit, but they have requested information regarding the permits of the “Fearless Girl,” in addition to asking New York City Mayor Bill de Blasio to move the statue elsewhere. Di Modica and his attorneys are hoping to resolve this amicably, but they have not removed litigation from the table.

Paid Family Leave Without Worries?

–by Nicole Macris

Citations: Family Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq. (2017); FAMILY Act, S.337, 115th Cong. (2017), https://www.congress.gov/bill/115th-congress/senate-bill/337; Wendy McElroy, The FAMILY Act is Smart Politics, but Bad for Business, The Hill (Oct. 14, 2014, 6:00 AM), http://thehill.com/blogs/pundits-blog/healthcare/219766-the-family-act-is-smart-politics-but-bad-for-the-economy; Claire Zillman, Kirsten Gillibrand is Giving Her Paid Family Leave Proposal its First Trump-Era Test, Fortune (Feb. 7, 2017), http://fortune.com/2017/02/07/trump-paid-family-leave-gillibrand/.

Abstract: United States Senator Kirsten Gillibrand (D-NY) introduced a bill that would revise the paid-leave system developed under the Family Medical Leave Act. It establishes an insurance-based program for paid-leave. There are concerns regarding how this legislation, if enacted, would affect employees, employers, and the federal government.

***

Enacting the Family Medical Leave Act (“FMLA”) in 1993 provided up to 12 weeks of unpaid leave to those in need of an excused leave of absence. However, under FMLA, many employees were unable to afford leave without pay, and unable to take the full leave. The FAMILY Act will work in conjunction with FMLA to construct an affordable safety net for employees who need to care for themselves or family members.

United States Senator Kirsten Gillibrand (D-NY) introduced multiple bills to revise the FMLA. Her latest attempt began by introducing the FAMILY Act, her first try during the Trump Administration and 115th Congress in Senate Bill 337, on February 7, 2017. The FAMILY Act is modeled after the paid family leave statutes in California, New Jersey, and Rhode Island, which increased the number of people in the workforce who were eligible for paid leave insurance based on a particular set of standards. Senator Gillibrand’s bill sets forth eight objectives:

  1. centralize the policies within FMLA to the federal government and, subsequently, establish a new division within the Social Security Administration (“SSA”): Office of Paid Family and Medical Leave, to oversee the entirety of the insurance program;
  2. set forth the criteria by which individuals are eligible for benefits of the program, prohibitions, and violations;
  3. entitle individuals to the insurance if the person (a) is insured for disability insurance under SSA when the application is filed, (b) earned twelve (12) months of income from employment, (c) filed an insurance application pursuant to the bill, and (d) is engaged in either caring for or anticipates to be engaged during a 90-day period, either before filing the application or within 30 days of filing;
  4. create a formulaic determination of the benefit which the individual will receive monthly, including the maximum and minimum amounts per month;
  5. coordinate the Family and Medical Leave Insurance benefits with any benefits received from other insurance programs via state law, local government, or disability insurance or family leave insurance programs;
  6. create a fund, from which the payments will be made;
  7. protect SSA from the insurance being paid from other programs within the agency; and
  8. amend the Internal Revenue Code to finance the program by imposing taxes on individuals, employers, the self-employed, and all railroad employees, railroad representatives, and railroad employers.

Thus, the FAMILY Act develops a system similar to an unemployment insurance program, but on a federal level, which gives employees a fallback plan when they need to take on the role of caregiver.

There are concerns as to how this legislation will affect individuals, employers, and the government. Individuals will have to pay into the system; the amendments to the Internal Revenue Code will impose taxes on individuals in order to fund the program. This safeguard has both negative and positive effects. The amount taken from paychecks will increase, but, on the other hand, there is a safeguard set in place for those eligible for the program, and in need of assistance. Employers will also incur a tax expenditure, but will be held to minimum FMLA standards, and may actually benefit from the insurance program established by the FAMILY Act. However, the effects facing the government could be substantial. The FAMILY Act will require the federal government to allocate resources to the program, which, in turn, removes resources from other federally funded programs or agencies. Programs such as this also place further obligations on the federal government to protect the American people.

The objectives of the bill, and insurance program, are wonderful in theory. Having a safety net is comforting, especially for those with aging parents, sickly family members, etc., especially when financial security is of concern when determining how to care for family members. Previous bills, with little to no amendments between introductions, have been killed in Congress several times already. Furthermore, it is unlikely that a new office within the SSA will be established while there is a hiring freeze. There must be revisions to the bill in order to facilitate a smooth transition from the current to proposed programs, along with provisions as to how resources will be properly allocated.

“Total Amount Due” Means the Total Amount Due

–by Andriy Troyanovych

Source: Carlin v. Davidson Fink L.L.P., No. 15-3105-cv, 2017 WL 1160887 (2d Cir. Mar. 29, 2017)

Abstract: On March 29, 2017, the Second Circuit held that a letter to a consumer debtor providing a “Total Amount Due” and then following that with small print that states that the amount may include other fees was improper under the Fair Debt Collection Practices Act.

***

Facts and Procedural History

Davidson Fink, a debt collection and foreclosure firm, instituted collection proceedings against Andrew Carlin, who had allegedly defaulted on a 2005 mortgage. Davidson Fink filed a Foreclosure Complaint against Carlin. Davidson Fink sent a copy of the letter to Carlin, along with a “Notice Required by the Fair Debt Collection Practices Act,” which essentially told Carlin that the debt is assumed valid, unless he disputes it within 30 days. However, the complaint did not state a total amount owed.

Carlin promptly notified Davidson Fink and disputed the validity of the debt by requesting a verification of the total dollar amount owed. Thereafter, in August 2013, Davidson Fink sent Carlin a letter containing a payoff statement including a “Total Amount Due” of $205,261.79. But, just below the payoff statement was small print that read “Total Amount Due may include estimated fees, costs, additional payments and/or escrow disbursements that will become due prior to the ‘Statement Void After’ date, but which are not yet due as of the date this Payment Statement is issued.” Carlin then initiated proceedings against Davidson Fink alleging that the firm violated the FDCPA, particularly the section that requires a debt collector to send the debtor a written notice containing “the amount of the debt.” After reconsideration by the district court led to a dismissal of Carlin’s complaint for failure to state a claim, he appealed that decision to the Second Circuit Court of Appeals.

Second Circuit Decision

The Second Circuit vacated and remanded. The court applied the “least sophisticated consumer” standard to find that “[b]ecause Carlin ha[d] adequately alleged that the August letter [was] an initial communication sent by a debt collector . . .  and that it does not clearly state the amount of the debt,” the lower court decision was vacated and remanded.

In assessing Carlin’s claim, the court looked to whether (1) any of his communications with Davidson Fink were “initial communications” within the meaning of 15 U.S.C. § 1692g(a); (2) any of the communications were “in connection with the collection of any debt”; and (3) whether Davidson Fink provided the amount of debt within five days of such communication.

The court found quite convincingly that the August letter was the initial communication, and also that it was in connection with the collection of a debt as shown by the letter’s unambiguous communication. The court then found that Davidson Fink did not adequately state the amount of the debt Carlin owed in the August letter. Because of the small print after the “Total Amount Due,” the “least sophisticated consumer” would not be likely to determine whether those amounts were properly part of the amount of the debt. The court went on to further reason that “[a]bsent fuller disclosure, an unsophisticated consumer may not understand how these fees are calculated, whether they may be disputed, or what provision of the note gives rise to them.”

The court did point out that it was not forbidding debt collectors to include such fees in their payment statements, however, in order to do so, a debt collector should take special care to include a separate “Total Amount Due” that would “clarify the actual amount due, the basis of the fees, or simply some information that would allow the least sophisticated consumer to deduce the amount she actually owes.” This would satisfy the requirements of the FDCPA, and also provide more clarity to the debtor.

United States Supreme Court Reverses and Remands Case of Alleged Racial Bias

–by Taylor J. Hoy

Citation: Pena Rodriguez v. Colorado, 580 U.S. ____ (2017); Pena-Rodriguez v. People, 350 P.3d 287 (Colo. 2015).

Abstract: Pena-Rodriguez examines Colorado’s interpretation of Colorado Rule of Evidence (“CRE”) 606(b) as it applies to affidavits that claim jurors made racially biased statements during deliberations.

***

During trial, the jury found petitioner, Miguel Angel Pena-Rodriguez guilty on one count of sexual contact without consent and two counts of harassment. Two weeks following the conviction, two jurors informed petitioner’s counsel that “some of the other jurors expressed a bias towards [Petitioner] and the alibi witness because they were Hispanic.” In a motion for a new trial, Petitioner submitted affidavits from two jurors, M.M. and L.T., alleging that juror H.C. made several racially biased statements during deliberations. Ultimately, the trial court denied petitioner’s motion based on the contention that CRE 606(b) barred further inquiry into juror members’ bias during deliberations.

After receiving affirmation from both the Colorado State Court of Appeals and the Supreme Court of Colorado, the Supreme Court of the United States granted a petition for writ of certiorari in the matter.

In its decision on March 6, 2017, the Court focused on whether CRE 606(b) may bar evidence of racial bias to prove a violation of the Sixth Amendment right to an impartial jury. The majority held that “where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.” The no-impeachment rule assures “jurors that, once their verdict has been entered, it will not later be called into question based on the comments or conclusions they expressed during deliberations.” The Court said that trial courts must find a “showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict.” Furthermore, to succeed, statements must show that the “racial animus was a significant motivating factor in the juror’s vote to convict.” Here, the statements made by juror H.C. were “egregious and unmistakable in their reliance on racial bias.”

Justice Kennedy, writing on behalf of the majority, focused the opinion on the importance of the jury as the central foundation of our justice system and democracy and the right to a fair and impartial jury. In ordering the decision, he highlighted the importance of confronting egregious cases, amplifying the need to make strides to overcome race-based discrimination as a nation and mature as a legal system, and understanding and implementing lessons of history.

Justice Thomas and Justice Alito wrote separate dissents. Justice Thomas dissented because the Court’s decision is incompatible with the text of the Amendment and the decision to curtail or abandon the no-impeachment rule should be left to the political process. Justice Alito’s dissent, also signed by Chief Justice Roberts and Justice Thomas, argued that the Court’s decision is well-intentioned, but feared that it would be difficult to limit the Court’s ruling. “Although the Court tries to limit the degree of intrusion, it is doubtful that there are principled grounds for preventing the expansion of today’s holding.”

Coachella Music Festival Sues Urban Outfitters

–by Irem Karacal

Sources:

Kat Greene, Coachella Hits Urban Outfitters, Free People with TM Suit, Law 360, (Mar. 14, 2017, 8:46 PM EDT), https://www.law360.com/articles/902025/coachella-hits-urban-outfitters-free-people-with-tm-suit.

Ryan Reed, Coachella Organizers Suing Urban Outfitters for Trademark Infringement, Rolling Stone, (Mar. 17, 2017), http://www.rollingstone.com/music/news/coachella-suing-urban-outfitters-for-trademark-infringement-w472583.

Cait Munro, Coachella Suing Urban Outfitters is the Most Hilarious Lawsuit of 2017 Thus Far, Bullet Media, (Mar. 17, 2017, 1:08 PM), http://bullettmedia.com/article/coachella-suing-urban-outfitters-hilarious-lawsuit-2017-thus-far/.

Coachella Music Festival, LLC v. Urban Outfitters, Inc., 2:17-CV-02027 (C.D. Cal. filed Mar. 14, 2017).

Coachella, https://www.coachella.com (last visited Apr. 3, 2017).

15 U.S.C. §1114(1) (2005).

15 U.S.C. § 1125(c) (2012).

Abstract: Coachella Music Festival, LLC filed suit against Urban Outfitters, Inc. in the U.S. District Court for the Central District of California accusing Urban Outfitters of violating Coachella’s Trademark of the term “Coachella.”

***

On March 14, 2017 Coachella Music Festival, LLC filed a complaint in the United States District Court for the Central District of California alleging that the popular retail store Urban Outfitters, LLC and its Free People unit of the brand had infringed on Coachella’s trademark.

Coachella, the popular music and arts festival that occurs annually in the Coachella Valley of Southern California, is known for attracting popular musicians, artists, celebrities and other “chic festival goers” every year. The Coachella festival hosts multiple bands, artists, food vendors, and stages attracting nearly 600,000 attendees annually. Coachella and Goldenvoice, LLC, the promoter for Coachella, own numerous registrations for the famous Coachella marks and use the marks in connection with their goods, services, and apparel. Coachella and Goldenvoice sell sponsorships and license the use of the marks to others for services and apparel, however they are very selective in the entities they chose to allow to use the Coachella mark.  Previously, Coachella has allowed the retailer H&M to license the mark and the two groups collaborated to form an exclusive “Coachella” collection for H&M.

The popularity of the event has prompted retail stores to target customers every Spring by marketing directly towards the festival-going crowd or others who may wish to draw on the fringed jackets, crocheted tops, frayed denim, and nonchalant vintage aesthetic. The popular retail stores, Urban Outfitters and Free People, bought the keyword “Coachella” so when online shoppers search the term “Coachella clothing,” Urban Outfitters and Free People’s products and websites appear.  Coachella and Goldenvoice have not authorized the affiliation and have not licensed the Coachella trade name to Urban Outfitters and Free People for use. Essentially, Urban Outfitters and Free People are misdirecting shoppers using the keyword to trigger advertising so that shoppers will be led to Urban Outfitter and Free People’s websites that sell their apparel with the unauthorized Coachella label. Coachella alleges that Urban Outfitter and Free People’s use of the term is a violation of the Coachella trademark and is likely to cause confusion of affiliation.

Coachella’s complaint alleges a cause of trademark infringement under 15 U.S.C. §1114(1). A trademark violation occurs when (1) a plaintiff has registered their trademark, (2) defendant has used the trademark, and (3) defendant’s use creates a likelihood of confusion. Here, Coachella has registered their mark and retained the trademark and service mark rights to the Coachella, Coachella (stylized mark), and Coachella Valley Music and Arts Festival. To satisfy the “use” requirement, the trademark must be used in commerce. The redirection to Urban Outfitters and Free People’s retail sites with the search word Coachella and the distinct use in commerce in their advertising and of marketing under Coachella and “Coachella Bella” as alleged here suffice as uses in commerce. Regarding the likelihood of confusion, a court will consider a multitude of factors including the similarity of the marks and similarity of the goods and services offered.  Urban Outfitters and Free People have used the identical mark, Coachella, and have used it in apparel, which is a similar good to Coachella’s own use of the mark.  In addition to trademark infringement, Coachella’s complaint also alleges a dilution cause of action under 15 U.S.C. §1125(c).

The complaint concludes with a request for relief including punitive damages, attorney costs, an award of all profits from Urban Outfitters and Free People’s sales to Coachella, and a permanent injunction enjoining and restraining Urban Outfitters and Free People from continuing to sell and market items under the name Coachella. This is neither party’s first instance in discussion on trademark violations. However, this complaint coincides with the beginning of the Coachella festival on April 14, 2017. With the beginning of the festival fast approaching and festival-goers seeking the perfect Instagram worthy outfit, the court’s decision regarding Coachella’s complaint will have an impact on future retail and marketing opportunities surrounding the event.

For Want of a Comma

–by Ian Ludd

Citations: Daniel Victor, Lack of Oxford Comma Could Cost Maine Company Millions in Overtime Dispute, N.Y. Times (Mar. 16, 2017) https://www.nytimes.com/2017/03/16/us/oxford-comma-lawsuit.html?_r=1; O’Connor v. Oakhurst Dairy, No. 16-1901, 2017 U.S. App. LEXIS 4392 (1st Cir. Mar. 13, 2017); Maine Legislative Drafting Manual, 1st Ed. 1990, Revised Aug. 2009.

Abstract: The lack of a serial comma (or oxford comma) in a Maine wage and hours law created an ambiguity that compelled the First Circuit to rule in favor of the plaintiff delivery drivers in O’Connor v. Oakhurst Dairy. The Maine Legislative Drafting Manual specifically urges legislators to avoid the use of such commas. However, the ambiguity created by the absence of a serial comma raises questions of whether or not the convenience of their exclusion is worth the cost.

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“For want of a comma, we have this case,” wrote Circuit Judge Barron in delivering the First Circuit’s opinion on a labor dispute. On March 13, 2017 the First Circuit ruled in favor of the delivery drivers of Oakhurst Dairy and Dairy Farmers of America, Inc., finding the lack of a serial comma within a state statute determinative in its decision.

The Appellate Court’s analysis in interpreting the scope of an exemption from Maine’s overtime law focused on the lack of a “serial comma,” or “Oxford comma” within the statute. The relevant portion of the statute states:

The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:

(1) Agricultural produce;

(2) Meat and fish products; and

(3) Perishable foods.

The lack of a serial comma between “shipment” and “or” within the text of the statute created sufficient ambiguity that the Circuit Court overturned the District Court’s findings.

The Maine Legislative Drafting Manual specifically advises drafters to avoid using serial commas. As the manual states, do not write “trailers, semitrailers, and pole trailers” – instead, write “trailers, semitrailers and pole trailers.” However, this did little to ease the Circuit Court’s concern regarding the ambiguity inherent with the lack of the comma.

While the delivery drivers “distribute” perishable foods, they do not package perishable foods for shipment or distribution. As Justice Barron stated, “[I]f that exemption used a serial comma to mark off the last of the activities that it lists, then the exemption would clearly encompass an activity that the drivers perform.” However, under Maine law, any ambiguity within the state wage and hour laws must be liberally construed so as to accomplish their remedial purpose. The remedial purpose of the statute was to reward workers with wages. For this reason, the First Circuit adopted the drivers’ liberal interpretation of the exemption and awarded them overtime pay.

The First Circuit’s reliance on the importance of the comma is far from unique within legal history. From a $1 million dispute between Canadian companies in 2006, to a tariff law from 1872, to varying interpretations of a comma in the Second Amendment, commas have a storied past in legal interpretation and analysis.

The Maine Legislative Drafting Manual is hardly unique in its distaste for the “oxford comma.” The Associated Press and most major American new organizations instruct their writers not to use the additional comma. Exceptions are made only to resolve ambiguity. The comma is however widely embraced within book and academic publishing. The Chicago Manual of Style and the Oxford University Press style both use the serial comma, as it serves to resolve ambiguity.

The adoption or condemnation of the oxford comma within Legislative Drafting Manuals has far reaching implications for future legislation. One wonders why legislatures would resist the use of a comma that so often functions to clarify. Does the convenience of the lack of the comma truly outweigh the clarity that the serial comma provides? While critics of the additional comma may say it is redundant, is the extra effort of a comma truly more burdensome than the potential ambiguity its absence may create? For the Dairy Companies who lost this case, the lack of the comma could prove to cost an estimated $10 million. Perhaps legislatures should value the clarity of a serial comma over the convenience of its exclusion. Whether the Maine legislature will rewrite the statute in a way that resolves this ambiguity remains to be seen.

SCOTUS: No-Impeachment Rule Not Applicable to Jury Deliberations When Racial Bias is Found

–by Melanie-Ann DeLancey

Source: Pena-Rodriguez v. Colorado, 580 U.S. ____ (2017).

Abstract: On March 6, 2017, the U.S. Supreme Court held that racial comments made during jury deliberations can violate a defendant’s constitutional right to a fair trial.

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Facts and Procedural History

Miguel Angel Pena-Rodriguez was accused of groping teenage girls while at his workplace. Pena-Rodriguez maintained that it was a case of mistaken identity and that he did not touch the girls. Ultimately, the jury convicted Pena-Rodriguez of one misdemeanor count of unlawful sexual contact and two misdemeanor counts of harassment. The jury was unable to reach a verdict on the felony charge of attempted sexual assault of a child.

It was reported that during deliberations, a juror stated, “I think he did it because he’s Mexican and Mexican men take whatever they want.” The juror went further to say, “nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.” His defense attorney learned of the comments after the verdict. When the defense attorneys requested that the judge investigate whether these comments prevented their client from receiving a fair trial, the judge declined. The Colorado Supreme Court upheld the decision. Both federal and state law precluded challenges to statements made during jury deliberations.

Supreme Court Decision

The Supreme Court reversed and remanded. In a 5-3 decision, Justice Kennedy stated that when a juror makes clear statements that indicate he or she relied on racial stereotypes or animus to convict a defendant, the Sixth Amendment requires the trial court be allowed to consider the evidence of the statement, regardless of the no-impeachment rule. The no-impeachment rule assures “jurors that, once their verdict has been entered, it will not later be called into question based on the comments or conclusions they expressed during deliberations.” Racial bias and animus in jury deliberation taints the legal system and does not ensure equal treatment under the law to all criminal defendants. Not every offhand comment indicating racial bias or hostility will justify setting aside the no-impeachment bar to allow inquiry. There must be a showing that one or more jurors made statements that exhibit overt racial bias that “cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict.”

While the Court recognized that all forms of improper bias poses challenges to the trial process, the Court does not address those in this decision. The Court found that a sound basis existed to treat racial bias differently—to be treated with added precaution. “A constitutional rule that racial bias in the justice system must be addressed—including . . . after the verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.”

Alito Dissenting

In his dissent, Justice Alito found that the majority’s decision invites the harms that the no-impeachment rule was put in effect to prevent. The finality of verdicts will be undermined, harassment and annoyance by litigants seeking to challenge the verdict will increase, and the overall stability of the trial system will be called into question. Alito further penned that the decision would inhibit full and frank discussion in the jury room.

Supreme Court of the United States Quotes Syracuse Law Review Article

–by Samantha Pallini

Citation: McLane Co. v. EEOC, No. 15-1248, 2017 U.S. LEXIS 2327, at *17 (Apr. 3, 2017) (quoting Maurice Rosenberg, Judicial Discretion of the Trial Court, Viewed From Above, 22 Syracuse L. Rev. 635, 637 (1971)).

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The Supreme Court of the United States decided on April 3, 2017, that the Ninth Circuit Court of Appeals should review the decision of the district court, regarding the enforcement or rejection of an EEOC subpoena, for abuse of discretion.

In the majority opinion, Justice Sotomayor quotes a 1971 Syracuse Law Review article by Maurice Rosenberg, a 1940 graduate of Syracuse University and 1947 law graduate of Columbia Law School.

Maurice Rosenberg. Photo courtesy of Joe Pineiro and Columbia Law School.

Rosenberg’s article, Judicial Discretion of the Trial Court, Viewed From Above, discusses the meanings and uses of judicial discretion, specifically with regard to “primary” and “secondary” forms of discretion. Primary discretion, he explains, is when an adjudicator has a wide range of choices; whereas, secondary discretion has to do with “hierarchical relations among judges.”

“If the word discretion conveys to legal minds any solid core of meaning, one central idea above all others, it is the idea of choice,” Rosenberg writes.