Flying Car Receives EASA Certification in Europe

AL-V, the first flying car to be allowed on the road in Europe, is now also the first flying car to complete full certification with European Union Aviation Safety Agency (EASA). The PAL-V Liberty (flying car) went through 10 years of testing, and now is in the final phase of compliance demonstration before becoming available to its customers.

PAL-V CEO, Robert Dingemanse, said, “Although we are experienced entrepreneurs, we learned that in aviation everything is exponentially stricter. Next to the aircraft, all aspects of the organization, including suppliers and maintenance parties must be certified.”

In 2009, PAL-V worked with EASA to amend the Certification Specifications for Small Rotorcraft, CS-27, as a starting point for certification of its flying car. Ultimately, together they amended the complete list of more than 1,500 criteria to make it applicable for PAL-V. The final version of these criteria was published last week. Note that this development only occurred after more than 10 years of analysis, test data, flight tests, and drive tests.

This EASA certificate is valid in Europe AND is also accepted in about 80 percent of the world’s market, including the United States and China.

Copyright © 2020 Robinson & Cole LLP. All rights reserved.

ARTICLE BY Kathryn M. Rattigan of Robinson & Cole LLP

Recent Attorney-Client Privilege Cases Show The Risks Of Insurance Counsel Authoring Denial Letters

Claims of bad faith present unique challenges for insurers (and their counsel) with respect to attorney-client privilege: if the insurer’s state of mind is at issue, is the legal advice on which the insurer relied also at issue, thereby waiving the privilege? And if so, under what circumstances? The following addresses this issue in the context of a common practice for insurance counsel—authoring denial letters—and two recent holdings that should serve as warnings in this practice.

I.  Waiving Attorney-Client Privilege: Legal Advice vs. Insurer’s Coverage Decision

In cases involving claims of bad faith, courts are relatively clear that an insurer waives its attorney-client privilege when it expressly invokes the “advice of counsel” defense, which generally provides that “when an insurer’s actions are in conformity with advice given to it by counsel, the insurer’s actions are taken in good faith, and thus the essential element that an aggrieved insured must demonstrate in establishing insurer bad faith is nullified.”[1] However, courts are less united on whether a waiver occurs when the insurer receives advice from its attorney when making its coverage decision, but does not expressly assert the “advice of counsel” defense.

Most courts reject claims of waiver under these circumstances, recognizing the difference between (a) the attorney’s advice on the law and (b) the insurer’s ultimate decision to provide coverage or not. The latter is relevant to a claim of bad faith, but the former is not.[2] By contrast, some courts have held that under certain circumstances, the insurer waives its attorney-client privilege by relying on legal advice—even without actually invoking the “advice of counsel” defense. The Supreme Court of Arizona summarized the underlying rationale as follows:

When a litigant seeks to establish its mental state by asserting that it acted after investigating the law and reaching a well-founded belief that the law permitted the action it took, then the extent of its investigation and the basis for its subjective evaluation are called into question. Thus, the advice received from counsel as part of its investigation and evaluation is not only relevant but, on an issue such as this, inextricably intertwined with the court’s truth-seeking functions.[3]

II.  Insurance Counsel Authoring Denial Letters

This attorney-client privilege issue has recently spread to a new battleground, and one which is common practice for insurance counsel: authoring denial letters. To address waiver under these circumstances, some courts have continued the majority rationale by reinforcing the distinction between the attorney’s legal advice and the insurer’s ultimate decision whether to grant coverage.[4] However, two recent decisions should serve as warnings to insurers and their attorneys moving forward.

The first is Canyon Estates Condo. Ass’n v. Atain Specialty Ins. Co., in which the Western District of Washington held that the insurer’s outside counsel did not perform “a privileged task” when it authored and sent denial letters directly to the insured.[5] The court explained that Washington law enforces a presumption that “there is no attorney-client privilege relevant between the insured and the insurer in the claims adjusting process,” which the insurer may overcome “by showing its attorney was not engaged in the quasi-fiduciary tasks of investigating and evaluating or processing the claim, but instead in providing the insurer with counsel as to its own potential liability,” such as “whether or not coverage exists under the law.”[6]

Concluding that the insurer had not overcome this presumption with respect to the denial letters, the court explained that the attorney “clearly—and arguably, knowingly—engaged in at least some quasi-fiduciary activities, including the authoring of draft letters signed by [the insurer] and sent to [the insured] related to coverage and claims processing.”[7] Although drafting the denial letter surely involved legal questions regarding coverage, the court reasoned that “where the insurer’s attorney is involved in both quasi-fiduciary and coverage or liability capacities,” waiving privilege is likely to occur because “counsel’s legal analysis and recommendations to the insurer regarding liability generally or coverage in particular will very likely implicate the work performed and information obtained in his or her quasi-fiduciary capacity.”[8] Importantly, although Canyon Estates did involve claims of bad faith, the court’s reasoning offers no indication that the presence of such claims was essential to its decision. Indeed, the district court did not mention “bad faith” at all, which suggests that insurers and their attorneys could face privilege challenges even when the insured does not assert claims of bad faith.

The second warning is Travelers Prop. Cas. Co. of Am. v. 100 Renaissance, LLC, in which the Supreme Court of Mississippi held that an insurer waived its attorney-client privilege when its in-house counsel ghostwrote denial letters, which were then sent from the adjuster to the insured.[9] Initially, the insurer had denied the insured’s claim because it did not involve a covered “auto” under the policy.[10] The insured’s attorney then sent a lengthy legal analysis to the insurer’s adjuster, arguing that a particular Mississippi statute mandated coverage.[11] The adjuster was not an attorney, and therefore sought advice from the insurer’s in-house counsel, who then penned a letter (in the adjuster’s name) that reaffirmed why—under the policy and Mississippi statutes—coverage was not required.[12] Ultimately, the insured asserted claims against the insurer for bad faith, and sought a deposition of the insurer’s in-house counsel, along with emails between counsel and the adjuster.[13]

The Supreme Court of Mississippi concluded that the insurer waived its attorney-client privilege, explaining that “if the claims handler relied substantially, if not wholly, on in-house counsel to prepare her denial letter, the reasoning of in-house counsel should be discoverable.”[14] The court reasoned that although the insurer sent the letter “in an effort to explain its arguable and legitimate basis to deny the claim,” the adjuster’s testimony made clear that she did not actually understand the legal basis for the denial, and therefore the letter merely represented the attorney’s reasons for denying the claim—not the insurer’s.[15] According to the court, this meant that the attorney did more than just “act as legal counsel and give advice to [the adjuster] to include in the denial letter.”[16] Citing with approval the Supreme Court of Arizona’s decision in Lee, the court explained:

[A] litigant cannot with one hand wield the sword—asserting as a defense that, as the law requires, it made a reasonable investigation into the state of the law and in good faith drew conclusions from that investigation—and with the other hand raise the shield—using the privilege to keep the jury from finding out what its employees actually did, learned in, and gained from that investigation.[17]

Like in Lee, the heart of this decision is the rejection of any distinction between (a) the attorney’s advice on the law and (b) the insurer’s ultimate decision to provide coverage or not. Yet, whether the insurer can articulate that advice as well as its attorney should be immaterial to whether the coverage decision itself had sound legal basis—an issue which the dissent in 100 Renaissance underscored.[18] Without this distinction, privilege would seemingly be at risk in every case involving claims of bad faith (and perhaps even those without such claims) where legal analysis is at least a partial basis for the denial. And given the vast array of statutory, common law, and interpretive issues that inform each decision, this will be a frequent occurrence.

This leaves an insurer (and the adjuster in particular) with two choices: (a) try to interpret the law itself without help from legal counsel, or (b) ask the insurer’s attorney for legal advice, in which case their communications will be subject to discovery unless the insurer can sufficiently re-articulate the legal analysis. Thus, in either case, the insurer must be able to explain often-complex legal issues. The dissent in 100 Renaissance described this exact dilemma: “The majority thus appears to impose a requirement that in order to preserve the privilege, a claims handler must be able to explain legal arguments at her deposition—the same legal issues for which she sought advice in the first place.”[19] Not only that, these are also the same legal issues that the insured had to have its attorney explain, with which the insurer’s counsel then disagreed. As a result, not only must the insurer be able to articulate legal analyses, it must do so for issues on which legal professionals diverge. Indeed, both the majority and dissent in 100 Renaissance actually appear to acknowledge this, yet arrive at starkly different conclusions.[20]

[1] James M. Fischer, Should Advice of Counsel Constitute a Defense for Insurer Bad Faith, 72 Tex. L. Rev. 1447, 1461–62 (1994)

[2] See Aetna Casualty & Sur. Co. v. Superior Court, 153 Cal. App. 3d 467, 475 (Cal. Ct. App. 1984) (insurer did not waive privilege because it did not invoke “advice of counsel” defense, but instead “claim[ed] it acted as it did not because it was advised to do so, but because the advice was, in its view, correct; and it is prepared to defend itself on the basis of that asserted correctness rather than the mere fact of the advice. Such a defense does not waive the attorney-client privilege”); Botkin v. Donegal Mut. Ins. Co., 2011 U.S. Dist. LEXIS 63871, *19 (W.D. Va. 2011) (“There would be little point in retaining coverage counsel to issue an opinion if a party did not intend to rely on it. Likewise, if reliance always gave rise to waiver in this circumstance, no one would seek coverage counsel’s advice.”); Palmer by Diacon v. Farmers Ins. Exch., 261 Mont. 91, 110 (Mont. 1993) (“The attorney-client privilege applies unless the insurer directly relies on advice of counsel as a defense to the bad faith charge.”) (emphasis in original) (citations omitted)

[3] State Farm Mut. Auto. Ins. Co. v. Lee, 199 Ariz. 52, 60 (Ariz. 2000); see Tackett v. State Farm Fire & Casualty Ins. Co., 653 A.2d 254, 260 (Del. 1995) (when “an insurer makes factual representations which implicitly rely upon legal advice as justification for non-payment of claims, the insurer cannot shield itself from disclosure of the complete advice of counsel relevant to the handling of the claim”); but see Bertelsen v. Allstate Ins. Co., 796 N.W.2d 685, 703 (S.D. 2011) (finding that the Supreme Court of Arizona’s decision in Lee went “too far.”).

[4] See Liberty Corp. Capital Ltd. v. Palmetto Bluff Shooting Club, LLC, 2020 U.S. Dist. LEXIS 220654, *11 (D. S.C. 2020) (drafting denial letter does not waive privilege because “[b]ased on counsel’s advice, the client will always have subjective evaluations of its claims and defenses,” and therefore “insurer must take one step further and assert that its denial of the claim is objectively reasonable because it relied on the advice of counsel”) (citations omitted); Barnard Pipeline, Inc. v. Travelers Prop. Cas. Co. of Am., 2014 U.S. Dist. LEXIS 53778, *9 (D. Mont. 2014) (insurer’s attorney drafted denial letter, but “insurer has not asserted the defense of advice of counsel, and therefore has not waived the attorney-client privilege, simply because the insurer’s representative admits in response to a question on cross-examination that he/she listened to advice of counsel in deciding to deny an insured’s claim.”).

[5] 2020 U.S. Dist. LEXIS 10915, *4 (W.D. Wash. 2020).

[6] Id. at *2–3 (citations omitted).

[7] Id. at *4.

[8] Id. at *3–4 (citations omitted).

[9] 2020 Miss. LEXIS 409, *16–17 (Miss. 2020).

[10] Id. at *2

[11] Id

[12] Id. at *4–5

[13] Id. at *13–14.

[14] Id. at *22 (emphasis in original).

[15] See id. at *12 (“I don’t know. I’m not an attorney. I don’t know anything about statutes. That’s what we have General Counsel for. I deal with policy language, what’s in the policy.”).

[16] Id. at *18.

[17] Id. at *21.

[18] Id. at *27 (regardless of whether it can articulate legal analysis, “Travelers has already given its reasons for denying the claim. And the relevant question is whether Travelers had an ‘arguable or legitimate basis for denying the claim.’”) (citations omitted).

[19] Id. at *25.

[20] See id. at *16–17 (Majority explaining that adjuster’s “testimony also demonstrated a lack of knowledge of Mississippi UM law. She could not explain the origin or intended purpose of her citation of a nonexistent Mississippi statute in the denial letter.”).

© 2020 Dinsmore & Shohl LLP. All rights reserved.
For more, visit the NLR Litigation / Trial Practice section.

Survey Evidence Not Enough to Show Acquired Distinctiveness of Starbuck’s Green Dot on Coffee Cup

In our overstimulated environment with a plethora of brands, names, and marks, it is difficult for products to stand out. Some businesses, however, have managed to break through the noise by creating marks with lasting impressions on consumers. But there are limits, even for the most well-known brands such as Starbucks.

Starbucks Cup Comparison

While Starbucks was able to register its recognizable green circle on a white cup of particular size and shape for coffee, tea, and restaurant services (pictured on right), it was not as fortunate with its attempt to register a green circle on a white cup with no identifiable size or shape mark (pictured on left). See In re Starbucks Corporation, Serial Nos. 85792872 (left) and 86689423 (right) (January 17, 2019) (Opinion by Judge Michael B. Adlin).

In rejecting the plain green circle dot mark (left), the Trademark Trial and Appeal Board (TTAB) found the green circle, by itself, did not create a “separate and distinct commercial impression” from the famous siren design. As such, Starbuck’s consumer survey evidence fell short of establishing acquired distinctiveness, raised adequacy concerns, and failed to show that consumers associate the green circle on a cup with Starbucks.

A mark acquires distinctiveness when it is capable of making the relevant public audience associate the mark with its source. The mark gains secondary meaning when the consuming public naturally thinks of the producer and not the product. Usually, consumer surveys are used to measure whether a word, name, symbol, or design is identified by consumers as originating from a single source and to establish secondary meaning, especially with trade dress marks.

Starbucks Logo

In 2012, the evergreen coffee chain, Starbucks, filed two applications with the United States Patent and Trademark Office (USPTO) for the trade dress designs on its coffee cups featuring a green dot. The USPTO rejected both, and Starbucks appealed to the TTAB. In evaluating Starbuck’s consumer surveys upon which Starbucks relied to show acquired distinctiveness of the green circle on a white cup, the TTAB concluded that while the surveys had “some probative value,” their reliability was suspect. According to the TTAB, one of the most important aspects of a secondary meaning survey is to choose an appropriate control stimulus that shares as many characteristics with the experimental stimulus as possible except the characteristic whose influence is being assessed. In its survey, Starbucks tested two white cups with a green dot on the front and used a plain pale blue cup with no other markings as the control. The test cup had no distinguishing features displayed, which most likely led to the respondents’ low rate of identification of a single company. Instead, the control would have more adequately satisfied the standards of a control stimulus if the plain blue cup featured a different shape in a different color, such as a blue triangle.

The control stimulus is important because it not only filters out respondent guessing, but also identifies responses unrelated to the specific mark being tested. The absence of a proper control stimulus was evident in the survey responses identifying Starbucks – the TTAB noted it was not clear why survey respondents identified Starbucks, whether because of the green dot or because “green = Starbucks”, the shape of the cup, how familiar it looked, and the overall popularity of Starbucks. While the rates of association and recognition of the brand name were high, i.e. 65% and 69%, much higher than the minimum 30% required, the Board found this was due to the test cup’s unfamiliar and different characteristics, which led to an increase in responses identifying the cup with a green dot as Starbucks simply because Starbucks is a popular coffee brand. Had Starbucks used a control sample that was substantially similar to the specimen but for a blue triangle instead of a green circle, the TTAB would have viewed the survey results more favorably.

cups

The TTAB also took issue with the sample population of respondents surveyed. Starbucks’ survey was conducted online using an Internet panel, which excluded consumers who do not regularly use the Internet or use the Internet by phone. The TTAB found Starbuck’s sample population underrepresented low-income, rural, and elderly consumers who do not use the Internet much, but who are still very much a reasonable part of the coffee purchasing public. A more well-rounded and inclusive sample population would have resulted in a more accurate depiction of association and recognition rates.

Secondary meaning surveys have evolved from having no control stimuli to more carefully crafted experiments based on the use of a control stimulus. The Starbucks decision is instructive for applicants relying on consumer surveys – make sure to use control stimuli that replicate the test stimuli except for the mark characteristic or attribute being tested, do not go the way of the green dot.

COPYRIGHT © 2020, STARK & STARK

ARTICLE BY Gene Markin of Stark & Stark
For more, visit the NLR Intellectual Property section.

Dr. Seuss/Star Trek Mashup Boldly Goes to Ninth Circuit but Loses Fair Use’s Balancing Act

An author of Star Trek episodes teamed up with fellow Trekkies at ComicMix LLC to publish Oh, the Place You’ll Boldly Go!, an illustrated book that combined Star Trek characters with the stories of Dr. Seuss. Boldly used elements and illustrations from Seuss’s books Oh, the Places You’ll Go!, How the Grinch Stole Christmas! and The Sneetches and Other Stories. Dr. Seuss Enterprises, L.P., owner of the intellectual property in Dr. Seuss’s works, objected to the mashup book and sued ComicMix LLC for copyright and trademark infringement and unfair competition. The district court agreed with ComicMix that Boldly constituted a fair use of Seuss’s copyrights and granted summary judgment in ComicMix’s favor on the copyright claims. On appeal, however, the Ninth Circuit concluded that all of the statutory factors of the fair use defense weighed against ComicMix and reversed the district court’s copyright ruling, but affirmed the lower court’s trademark analysis

As explained by Dr. Seuss in Oh, the Places You’ll Go!, life is a great balancing act. Similarly, the test for fair use of a copyrighted work balances four statutory factors: (1) the purpose and character of the use, including whether the use is commercial or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work; and (4) the effect of the use on the potential market for or value of the copyrighted work. Applying these factors, the Ninth Circuit sent ComicMix packing.

First, the court analyzed the purpose and character of Boldly’s use of Seuss’s works, including whether Boldly was a transformative work. Although ComicMix asserted that Boldly was a parody of Go!, Boldly did not ridicule or critique Go!. Instead, Boldly focused on Star Trek characters and their adventures while evoking Go! by copying and repackaging Dr. Seuss’s “characteristic style” and illustrations. Consequently, Boldly was neither a parody nor transformative. Further, Boldly copied Go!’s illustrations, meaning, and message, and did so for a commercial purpose. The Ninth Circuit thus concluded that the first factor weighed definitively against fair use.

Illustration from Go! (left) and a “repackaged” illustration from Boldly (right)

Second, the creative and expressive nature of Seuss’s Go! weighed against a finding of fair use. The court noted that although the nature of the copyrighted work is usually not very significant in the fair use analysis, creative works like Go! are “closer to the core of intended copyright protection” than other types of works, such as informational works.

The third factor, the amount and substantiality of Boldly’s use of Go!, “weighed decisively” against fair use. Boldly used a substantial quantity of Go!—it copied nearly 60% of Go!, along with significant illustrations from two of Seuss’s other books, How the Grinch Stole Christmas! and The Sneetches and Other Stories. In fact, the court found that ComicMix deliberately and meticulously copied Seuss’s illustrations:

Excerpts from Go! (left) and Boldly (right)

In addition to a quantitative element, the third factor also has a qualitative component, which is often described as analyzing whether the copyist took the “heart,” or “the most valuable and pertinent portion” of the work. The Ninth Circuit held that Boldly had taken the heart of Seuss’s works. As an example, the court noted that ComicMix took the “highly expressive core” of Seuss’s Sneetches book by including illustrations of a machine from Sneetches on ten of Boldly’s twenty-two pages. In Seuss’s Sneetches, the machine is an integral part of the story because it can add and remove divisive heart-shaped symbols to and from the stomachs of Sneetches. Boldly copied minute details from the Sneetches machine; in fact, the illustrator stated that he “painstakingly attempted” to make the machines “identical.”

The machine from Sneetches (left) and Boldly (right)

The court concluded that ComicMix lacked justification for the substantial quantity and quality of its copying, especially considering that Boldly did not parody or transform Seuss’s works, and instead was a commercial exploitation.

For the fourth factor, the Ninth Circuit considered the potential market for, and value of, Seuss’s works. Seuss’s books have remained very popular and, for decades, Seuss authorized numerous derivative works. ComicMix planned to capitalize on Go!’s popularity during graduation season by scheduling Boldly’s publication “in time for school graduations.” Noting Seuss’s frequent collaborations and authorized licensing throughout the year, the court held that Boldly was likely to target and harm Seuss’s market for derivative works.

Because Boldly was an unauthorized and non-transformative work, ComicMix did not prevail on its fair use defense. Accordingly, the Ninth Circuit reversed the district court’s grant of summary judgment on Seuss’s copyright infringement claim.

Finally, the court affirmed the district court’s grant of summary judgment in favor of ComicMix on Seuss’s trademark infringement claim. The court held that dismissing the trademark infringement claim was proper because the use of Seuss’s registered and common-law trademarks (including in the title of Go!, the alleged “Seussian style of illustration,” and the claimed “Seussian font”) was not explicitly misleading. Under the Rogers test, the Lanham Act does not apply to the use of trademarks in an expressive work (like Boldly) unless the use is not artistically relevant, or if the use is explicitly misleading. Boldly satisfied the low threshold for artistic relevance, and the use was not explicitly misleading because Boldly listed the authors’ names on the cover and contained new expressive content.

The case is Dr. Seuss Enters., L.P. v. ComicMix LLC, 983 F.3d 443 (9th Cir. 2020).

© 2021 Finnegan, Henderson, Farabow, Garrett & Dunner, LLP

ARTICLE BY Jessica L. Hannah of Finnegan
For more, visit the NLR Intellectual Property section.

“Uber drivers are workers” says UK Supreme Court

This morning, 19 February 2021, the UK Supreme Court handed down judgment on the case of Uber v Aslam [2021] UKSC 5.

In a unanimous, landmark decision, the Supreme Court agreed that Uber drivers were “workers”, not self-employed contractors, for the purposes of UK employment law. Worker status entitles drivers to (amongst other things) 5.6 weeks of paid annual leave per year and sick pay and, crucially, to be paid at least the statutory minimum wage (which can be backdated).

The Supreme Court further clarified that Uber drivers are entitled to be paid minimum wage for the entirety of the period that they are logged into the app and are ready and willing to accept trips, and not just during the periods that they are driving passengers to their destinations.

The Court emphasised that what is important is the reality of the relationship between the parties, and noted the following:

  • Uber sets the fare for its drivers’ journeys, thereby dictating how much drivers are paid for their work;
  • Uber imposes its own contractual terms on drivers who wish to work through the app;
  • drivers’ choices about whether to accept ride requests are constrained by Uber;
  • Uber exercises significant control over the way in which drivers deliver their services; and
  • Uber restricts communications between its passengers and drivers.

The impact of this decision, to Uber, its drivers and the gig economy at large, cannot be understated. Going forward, and barring legislative intervention, Uber and other businesses operating in the platform or gig economy will need to fundamentally reassess both their labour relationships and the viability of their business models in light of this morning’s judgment. How Parliament and businesses choose to respond is sure to have significant and far-reaching consequences for the shape and future of the UK economy.

© 2020 Vedder Price
For more, visit the NLR Labor & Employment section.

Vaccine Volunteers: Is “Thank You” Sufficient Compensation?

The Fair Labor Standards Act (FLSA) requires employers to pay nonexempt employees at least minimum wage for all hours worked up to 40 hours in a workweek and time and one-half for all hours worked over 40 hours in the same workweek. An exception to this rule exists for volunteers, who are not categorized as “employees” under the statute. Typically, volunteers are individuals who donate their time to non-profit, civic, religious, and other charitable organizations.

In light of the COVID-19 pandemic and the urgency to administer vaccines as quickly as possible, hospitals and healthcare facilities are relying on volunteers to assist in organizing vaccine distribution. Employers may want to review their program to ensure volunteers are donating their time in a way that does not run afoul of the FLSA.

Unfortunately, no bright-line rule exists to determine whether an individual is volunteering his or her time or performing compensable work under the FLSA. Instead, this determination hinges, in large part, on the type of work performed by the individual.

If an individual is performing service that relates to commercial activities, he or she will likely be considered an employee under the FLSA, and therefore entitled to wages. For example, an individual who “volunteers” his or her time working at the hospital gift shop may be entitled to compensation under the FLSA. Further, if a volunteer performs tasks on a full-time schedule, is retained for an indefinite period, or displaces a regular employee, it is likely the FLSA would categorize this individual as an employee who should be paid wages for all hours worked.

Recently, some hospitals have been faced with situations in which employees offered to volunteer their time after their shifts to perform the same types of services they are otherwise employed to provide. For example, a nurse employed at a hospital to administer the COVID-19 vaccine to patients during her regular working hours may volunteer to continue vaccinating patients after her assigned shift. Because this is likely impermissible “volunteer” work under the FLSA, the nurse may be entitled to compensation for any hours worked after her shift.

Another similar situation would be when a retired nurse wants to assist with clinical aspects or vaccine administration on a volunteer basis. For the same reasons noted above, this may also be problematic. Employers may want to review each situation on a case-by-case basis and proceed with caution. At a minimum, the employer may want to consider the below recommendations before classifying the returning nurse as a volunteer—who will likely be working alongside paid employees performing the same tasks.

So how can hospitals and similar facilities potentially use volunteers? Some ideas that may be permissible under the FLSA include: organizing the hospital’s vaccine distribution process, including ensuring patients waiting for their vaccine are wearing masks and staying six-feet apart in a line (among other safety recommendations); helping with check-in and other administrative work; and answering questions from patients.

If permitting volunteer work, healthcare employers may want to consider asking volunteers to sign authorization or other written forms that acknowledge the volunteers are knowingly and willingly donating their time to specific tasks and that the duration of the work is temporary. This type of acknowledgment may help to verify that the volunteer and employer are aligned in terms of the work performed, their relative expectations, and the (lack of) compensation provided.

With hospitals and other healthcare distribution facilities maintaining a commitment to administer the vaccine as effectively and efficiently as possible, volunteers are a key part of this mission. Many roles may exist for volunteers that comply with the FLSA and applicable state laws. While employers may want to carefully consider each situation and take precautions, the additional assistance provided by volunteers may be worthwhile to service communities and provide a quick and seamless process to administer vaccinations. At the very least, employers may want to ensure that volunteers are receiving proper recognition and resources for their time, even if it is a simple “thank you.”

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved
ARTICLE BY John B. Brown and Jamie E. Brod of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

USDA Certified Organic Ciders: One of a Kind?

Anheuser-Busch introduced its Michelob Ultra Organic Seltzer last month, advertising the beverage as the “First-of-its-kind organic option to the hard seltzer category,” “First USDA-certified organic seltzer,” “First National USDA Certified Organic Hard Seltzer,” and “First-ever national USDA certified organic hard seltzer.” Anheuser-Busch even aired commercials during the nationally televised, highly viewed NFL Division Championship games, along with the Super Bowl that took place on Sunday, February 7. But now the question before an Oregon Court is whether these advertisements imply that it is the first and only kind in the country.

USDA Certified Organic Ciders

Suzie’s Brewery Company brews and packages Organic Hard Seltzer in Pendleton, Oregon. Suzie’s Brewery first launched its product line in July 2020 after obtaining its national organic certification from the USDA’s National Organic Program in June 2020. This program grants businesses the right to display the “USDA Organic” seal on their products should the business meet specific national standards. It also allows certified businesses to represent in advertising that their products have received national USDA organic certification. While most alcoholic beverages are regulated by the Federal Tax and Trade Bureau (“TTB”), and sugar fermented seltzers by the Food and Drug Administration (“FDA”), the USDA governs any food or beverage products that bear the “organic” label.

On February 2, 2021, Suzie’s Brewery sued Anheuser-Busch for false advertising and filed a motion for a temporary restraining order that would keep it from airing ads that Suzie’s Brewery claims are false. “Suzie’s Seltzer also has a national USDA organic certification, and was available on the market well before ULTRA Seltzer,” argued the attorney for Suzie’s Brewery, “In addition, there are several other hard seltzer brands on the market that have USDA organic certification.” Suzie’s Brewery further claims multiple consumers and product distributors contacted them regarding the Michelob Ultra Organic Seltzer advertisements, confused about it being the “first” or “only” USDA Organic certified seltzer. Others questioned the veracity of Suzie’s Brewery and their seltzers being USDA Certified organic, since Anheuser-Busch had claimed to be the “only” one on the market.

One of a Kind?

“Using the bully-pulpit its massive national advertising budget allows, Anheuser-Busch has premiered a new false and misleading advertising campaign aimed at convincing health-conscious drinkers that its new organic hard seltzer is a unique, one-of-a-kind product. To be clear, it is not,” Suzie’s Brewery stated, “and Anheuser-Busch will continue to pursue its strategy of unfairly squeezing out its smaller competitors in the organic hard seltzer market (like Suzie’s Brewery) unless this court puts a stop to its misconduct.”

On February 9, 2021, Judge Michael H. Simon of the United States District Court for the District of Oregon granted the temporary restraining order requiring Anheuser-Busch to immediately stop falsely claiming that its product – Michelob ULTRA Organic Hard Seltzer – is the only or first national USDA certified organic hard seltzer on the market. “It is false for Anheuser-Busch to say this,” the judge said, “because Suzie’s Organic Hard Seltzer is certified organic under the USDA’s National Organic Program and was certified under the national program before Michelob Ultra was.” This temporary restraining order will remain in effect until June 2, 2021, when Judge Simon is scheduled to rule on a motion for preliminary injunction filed by Suzie’s Brewery.

©2020 Norris McLaughlin P.A., All Rights Reserved
For more, visit the NLR Corporate & Business Organizations section.

White House Issues PPP Reforms

Today, the White House announced several reforms to the PPP Program aimed at targeting funds to the smallest businesses and those that have been left behind in previous relief efforts.

The key reforms are as follows:

  • 14-Day Exclusivity Period. From February 24 – March 10 only businesses with fewer than 20 employees can apply for PPP.
  • Revisions of Loan Calculation Formula. The loan calculation formula for sole proprietors, independent contractors, and self-employed individuals will be revised to offer more relief. Additionally, $1 billion will be set aside for businesses in this category without employees located in low- and moderate-income areas.
  • Removal of Restrictions on Eligibility.
    • Businesses with at least 20% owned by individuals who have committed a felony within the last year (except for financial-assistance related fraud) are now eligible for PPP, unless the applicant or owner is incarcerated at the time of the application.
    • Restrictions on eligibility for businesses with at least 20% owned by individuals who are delinquent on federal student loans will be removed.
  • Clarification of Non-Citizen, Lawful U.S Resident Eligibility. The SBA will issue clarifying guidance that holders of Individual Taxpayer Identification Numbers (“ITINs”) may access PPP if otherwise eligible.

The full White House briefing can be found here. SBA guidance on these matters will be forthcoming.

© Polsinelli PC, Polsinelli LLP in California

ARTICLE BY Philip G. Feigen and Sara C. Ainsworth of Polsinelli PC
For more, visit the NLR Coronavirus News section.

Food & Food Packaging Is Unlikely to Spread COVID-19

The U.S. Food and Drug Administration (FDA) and Department of Agriculture (USDA) published a press release yesterday underscoring the international consensus that no credible evidence shows that food or food packaging is a source of viral transmission of SARS-CoV-2, the virus that causes COVID-19.

The press release highlights a September 2020 opinion from the International Commission on Microbiological Specifications for Foods that stated, “Despite the billions of meals and food packages handled since the beginning of the COVID-19 pandemic, to date there has not been any evidence that food, food packaging or food handling is a source or important transmission route for SARS-CoV-2 resulting in COVID-19.”  This consensus is consistent with literature reviews and research in other countries, and the fact that in the 100 million cases of COVID-19 worldwide, no epidemiological evidence suggests food or food packaging is a source of transmission to humans.

The U.S. Centers for Disease Control and Prevention (CDC) together with the U.S. Occupational Safety and Health Administration (OSHA) have provided guidance for food manufacturers to reduce the risk of spreading COVID-19 between workers. These guidelines complement the USDA and FDA food safety requirements that all U.S. food manufacturers must follow, such as the current Good Manufacturing Practices and preventative controls that focus on good hygiene practices and worker safety.

© 2020 Keller and Heckman LLP
For more, visit the NLR Biotech, Food, Drug section.

Professional Photography is More Than Just Your Attorney Headshot

Lawyers, did you know that professional photography can help your law firm’s marketing efforts by increasing your conversion rates by up to 161%? These returns are made possible through the buyer psychology of connection. It is an opportunity for your target audience to know, like, and trust you in a very tangible way.

Employing a professional photographer might seem like an expensive outlay in the short term. However, the long-term effect it has on your brand, engagement rates, and sales makes it the perfect investment for your law firm.

Simply put, fresh photographs are essential to your law firm’s success.

When prospective clients see your photos, they understand who you are beyond what outdated photographs can provide. As consumers, they are more informed than ever, and outdated, recycled photographs stop having the same effect as newer ones.

From staff changes to annual modernizations, professional photography for law firms is vital to keeping your brand fresh while building a treasure trove of personalized and exciting content for your law firm marketing strategy.

Professional Photography Placement Beyond Your Attorney Biography

Your professional photography is important to use beyond your attorney biography on your website. While those are imperative to place, other mediums are enhanced by professional law firm photography.

People get used to the same photos over time. Make yourself stand out by regularly updating your photos to be used for your promotional and public relations materials.

Places that you can use them include:

  • Website Attorney Biography
  • Third-Party Legal Directories
  • Blog Posts
  • Social Media Posts
  • Collateral Materials
  • Press Releases
  • And more

Law firms that regularly promote their content, website, and services will significantly benefit by having current, fresh photos. It will also keep staff and attorney promotions up-to-date. The expectation of an annual photoshoot will ensure everyone feels included as well.

Some changes occur over time beyond appearance and staff. Consider the new, socially-distanced world we live in right now. Updated photography can also convey safety and convenience to prospective clients as well.

Types of Attorney Photography

The digital era brings new opportunities and, thus, new requirements. In the era of Zoom calls, it is best to have an updated headshot available.

Since first impressions always matter, ask yourself this: what if your first impression of someone is filled with confusion because they do not recognize you? Help set the right expectation and tone from the outset.

An array of photos that you should take include:

  • Attorney headshots
  • Staff headshots
  • Group photos
  • Behind-the-scenes working

Make sure that your photography supports your law firm’s brand. For example, if you brand yourself as an aggressive firm, your shots should reflect this attitude and style. A professional photographer will have an instinct and eye for encapsulating the desired effect while aligning with your brand.

Tips for a Smooth Photo Session

Before scheduling your photography session with a professional, ask around. Research reviews and hire someone with experience in photographing law firms.

It is also worth talking with your legal marketing agency for local recommendations as well. They may offer in-house services or discounts, which would be ideal and convenient.

#1: Manage your time

Check your calendar and block off extra time before and after the photo shoot is scheduled. Tell the other lawyers and support staff members about it as well so that they can prepare.

2. Deal with the contract before the photo session

Tie up as many loose ends as you can before the photo session, including signing and returning the service agreement. Ensure that you review and complete any contractual requirements before the big day.

Photo shoots most definitely run more smoothly when everyone is happy, well-rested, and in a good mood. Try to facilitate this attitude as much as you possibly can on picture day.

3. Declutter the office and inspect the exterior

Most law firms, especially attorney’s desks, get cluttered over time. Spend time getting your office shooting locations in order, as it will likely become the backdrop of your photos.

Get windows cleaned professionally, run a vacuum, and put all documents in drawers or filing cabinets.

4. Provide photoshoot guidelines

While most legal professionals generally look sharp on a daily basis, it is always helpful to receive tips for dressing on photoshoot day. These guidelines typically go beyond standard grooming tips.

Here are a few tactics that you can use to make your law firm’s photo session look aesthetically better:

  • Coordinate colors that compliment the location as well as each other
  • Clothes should be fresh, clean, and wrinkle-free
  • Solid colors and tones with minimal designs are better than busy patterns
  • Well-fitting clothes are critical since discomfort translates into photos
  • Discourage short sleeves if you can
  • White shirts are distracting, which means they should be worn under jackets
  • Avoid clothing with decals or brand logos

You can also check with your photographer for additional guidelines that they may have. Be sure to communicate any guidelines to your staff.

As you can see, the benefits and returns on new professional photography is an excellent investment for lawyers and law firms. Ensure that you hire a professional photographer who takes the time to understand your needs and organize a flawless shoot.

When executed well, you will enjoy the positive audience response that keeps those cases rolling in like clockwork. After all, that is the main objective.

© 2020 Denver Legal Marketing LLC

ARTICLE BY Meranda M. Vieyra of Denver Legal Marketing
For more, visit the NLR Law Office Management section.