Thursday, February 22, 2018

Improve Your Writing in the Time it Takes to Read This

“It is perfectly okay to write garbage—as long as you edit brilliantly.” – C. J. Cherryh

Many people think that litigation involves a Perry-Mason cross examination or Jack Nicholson losing it on the stand.  We love courtroom dramas too but the truth is, if you can handle it, is that most commercial cases resolve after a judge decides a client’s case based on written submissions.  This means that in most cases we are professional writers, presenting our clients’ cases not in the courtroom but through written briefs.

Although legal writing can be technical, good writing is good writing.  The same techniques we use to persuade judges are techniques our clients and friends can use to persuade their team, their boss, their board and their clients.  Here are 5 simple tips that will improve your writing right now.

Outline Everything

We outline every brief before we put pen to paper.  In fact, we outline almost everything.  Letters, substantive emails, even this blog post gets outlined.  Your outline does not have to be long.  The outline for this post is scribbled on the back of a magazine. 

The outline does more than organize your writing, it organizes your thought process.  There have been a number of times when we were headed in one direction only to go another after playing with an outline for an hour.  Bad writing is often a result of fuzzy thinking.  If you skip your outline, it will take you twice as long to straighten yourself out.

The more detailed your outline the more detailed your thinking.  Try to make the subject headings in your outline as detailed as possible.  Use a declarative sentence if possible.  Even if you decide not to create separate sections in your piece, using headings in an outline will help to keep you on track.

Learn to Stop Worrying and Embrace the Ugly First Draft

Our best finished product usually starts with an ugly, near stream-of-consciousness, first draft.  Do not even consider rewriting sentences or correcting grammar this round.  We will sometimes simply close our eyes while typing out the first draft to avoid the temptation.  It also has the added benefit of not having to look at the scary empty white space on the page.  Some of us will dictate a first draft. 
The point is to let your ideas flow unimpeded.  Don’t worry about missing punctuation, words or even sentences.  Once you grind out that ugly first draft, put it down for the day without editing or refinement.

When you pick it up again is when writing starts to get more fun.  You can start filling the inevitable gaps, improving flow and adding pithy one liners where appropriate.  If you try to skip the ugly first draft, it never turns out as well.

Stop Using Passive Voice

We have all heard this before but it is true.  If you are not sure whether you are writing in the passive voice ask yourself, “who is the actor in this sentence?”  For example, “plaintiff’s motion should be dismissed.”  Who should be doing the dismissing?  You can’t tell from this sentence and so know it is in the passive voice.  The active voice doesn’t hide the actor – “the judge should dismiss plaintiff’s motion” – and it makes for better writing.  It sounds better and provides more information.

If you find yourself using the passive voice often, consider whether you have an issue with your writing or your thinking.  When we find ourselves using the passive voice, it is often because we do not fully understand our topic and are using the passive voice as a crutch.  Who is the actor in your sentence?  If you do not know, you may need to clean up your thinking.

Please, No Corporate Speak, Made Up Words or Weblish

Corporate speak, made up words and “weblish” continue to work their way into our lexicon.  They do not have a place in your writing.  If you use corporate speak, your reader may not understand you.  Using the word “solution” to describe a product (often software) is a good example.  “We sold the customer a solution that will help them extract more useful information from their database.”  Rather than use a not so subliminal marketing tool, just describe what you sold.  If you use made up words (“I would guestimate that…”), you risk looking like someone who does not have the command of the English language needed to express themselves.  If you use weblish, you sound like a computer (“I don’t have the bandwidth for that…”).

You can usually avoid these issues by asking yourself a few questions.  If I used this term with a family member who knows nothing about my business, would they understand me?  If I looked in a dictionary, would this word appear?  Was this word or term in existence in 1970? If the answer to any of those questions is “no”, then keep it off the page.  

Lose the Adverbs Unless They Really Change the Meaning of Sentence

We are habitual offenders of this rule and often slash “-ly” words from our first drafts.  Overuse of adverbs tends to make your writing wimpy and bloated.  Use them sparingly and only when they change the meaning of a sentence.

The first sentence of this section is a good example.  Removing the adverbs “habitual” and “often” does not change the meaning of the sentence and removing it makes for a stronger sentence: “We are offenders of this rule and slash ‘-ly’ words…”

You can also reduce the tendency to overuse adverbs by using more descriptive verbs.  Rather than saying “he shook my hand very firmly,” you could say “he crushed my hand.”  Using a stronger verb allows you to remove the adverb “firmly.”


Good writing takes time but little changes can have an immediate impact.  Try these the next time you have a scary blank page in front of you.

Thursday, January 11, 2018

When Forming a Business Entity, Equal Partnership Isn't All It's Cracked Up to Be

“The worst form of inequality is to try to make unequal things equal.” ~Aristotle
Aristotle got it right. Some things were not meant to be equal. One quarterback should call the play. One physician should determine the treatment. And one person should steer the ship. Sometimes egalitarianism leads to impasse, confusion and even disaster. Yet, every month enthusiastic clients ask for assistance in setting up new businesses.  The conversation goes something like this: “My partner and I have a great idea for a business!  We want to form a company! We want to split everything 50/50!” 

There is a certain appeal in a 50/50 ownership split.  An equal split means “we share the risks, we share the rewards and we’re in this together!”  Splitting equity equally suggests obvious analogies to a marriage and - like marriages - creates the expectation that the business arrangement is “until death do us part.” Dividing ownership interests equally also avoids awkward conversations about the value of each partner’s contribution and the compatibility of individual goals.

Unfortunately, as in marriages, some business ventures do not work out. Management styles may clash and the business may outgrow the talents of its founders. Partners may pursue divergent personal and professional goals. One partner may be in search of a “lifestyle” business - a business that is essentially a life time job - while the other may be a “serial entrepreneur” intent on starting-up and selling out. In the most extreme examples, a business owner may find his or herself partnering with an irrational or self-interested owner, who puts his own needs ahead of the demands of the business.

Any Decision is Better than None

When managerial control is evenly divided between owners, there generally must be unanimous agreement before the business can act.  In the case of strategic decisions such as entering a new market, hiring a high level executive, or borrowing money, the need for unanimity may result in stalemate. Disagreements over strategic decisions may well reflect good faith differences of opinion in how the business should operate. At worst, however, a disgruntled fifty percent owner can use the veto power to exact concessions from a co-owner that have little to do with business strategy. An owner who is piqued at a partner can refuse to pay employee wages, vendors or company debts unless the other owner accedes to his or her demands.  An owner with signing authority at a bank can abscond or move money out of the other partner’s reach. Feuding owners that give conflicting directives to employees makes for a particularly toxic work environment. Employees may be forced to “choose sides” or decide to look for new jobs.

Once the internal dissension becomes public, third parties may decide to take a defensive posture to avoid being “caught in the middle.” Banks, payroll companies and other vendors may refuse to act without the authorization of both owners. The process can be cumbersome, frustrating and damaging to the business. Customers may be reluctant to make further commitments to an entity whose days seem numbered. Over time, the inability to reach any decision might be more damaging than implementing the “wrong” decision.

But Our Operating Agreement Says That…

There are a variety of devices that can be included in operating agreements and other organizational documents to help reduce the perils of 50/50 ownership. While such provisions offer some relief, they are not a panacea.

Many operating agreements contain “shoot out” provisions. Such provisions allow an owner to offer to purchase the other partner’s interests at a formula price or at a price determined by the offeror.  In the event the offer is rejected, the situation is reversed: the other partner is required to purchase the offering partner’s interests for the same amount.  While such provisions may offer an opportunity for “uncoupling” incompatible partners, there may be practical limits to their efficacy. A purchasing owner must have the financial resources to complete the buyout.  Privately-held businesses may be difficult to value and may not be able to attract third-party financing. Borrowing to fund the buy-out may also weaken the company’s financial posture and potentially trigger defaults with existing bank loans.

Even if an owner is successful in selling his fifty percent interest to the other owner, there may still be continuing obligations to the business. The sale of his or her interest will not extinguish an owner’s obligations under a personal guarantee. Third party creditors may have no incentive to release a departing owner from his guarantee obligations to the business.

When amicable negotiation fails to resolve 50/50 disputes, the parties frequently litigate. Unfortunately many county courts are unfamiliar with shareholder disputes. Some courts deal with fewer than a dozen commercial cases each year.  As a result, the tendency of the court is to act slowly and cautiously, which can prolong the often daily combat between owners and frustrate normal business operations.

The Takeaway

When considering a 50/50 split, understand that a dispute between the owners can have a crippling effect on the business that cannot be wholly mitigated by dispute resolution techniques.  While there are many ways of starting the discussion about equity distribution, one approach is to identify and weight key attributes necessary for business success and then evaluate each partner against such attributes. While such percentage weightings are not necessarily dispositive of equity ownership, they offer an objective approach to discussing roles and responsibilities. Such an exercise may also highlight talent “gaps” which must be filled for the venture to be successful. Allocating a percentage of ownership for future managers and deciding how that will affect the existing owners may make recruiting of high level talent easier and more efficient.

Frank, honest conversations at the beginning of a venture can build trust and lay the foundation for effective collaboration. Recognizing differences in talents, resources, management styles and commitment can lead to proportionate - and appropriate - equity distribution. In a business venture, the greatest inequality really is the effort to make unequal things equal.

Thursday, December 7, 2017

A Reporter Calls to Talk to You About Your Organization: Now What?

Guest Column from Wayne Pollock, Esq. 
Founder and Managing Attorney, Copo Strategies

There you are knee-deep in something business-related at your organization. Maybe you are speaking with an employee about a new process or procedure. Maybe you are speaking with a customer and trying to resolve an issue concerning your company’s services. Whatever it is, you are laser focused on what is front of you. And then, with no warning, your colleague bursts into the room. “You have an urgent phone call,” she says. “A reporter from [your local daily newspaper] is on the line. She has some questions for you about your company’s products and services.” It isn’t clear if these are good questions (“Your business is booming. Why?”) or bad questions (“I’ve received tips about your business from some disappointed customers.”).

What you do and say next could impact the livelihoods of both you and your organization for years to come. So, what do you do?

1. Pick up the phone and thank the reporter for calling, but tell him or her that you will have to get back to them.

Speaking to a reporter as soon as one calls you and thanking him or her for the call sends a signal to the reporter that you value his or her time and that you are willing to have a dialog. These gestures are small, but they are an easy way for you to endear yourself to the reporter and build a relationship with him or her. For a number of reasons, such a relationship could benefit you and your organization down the road thanks to the media exposure this relationship could provide the two of you.

But because this call is unexpected and you are not prepared to respond at this very moment, explain that you were in the middle of an urgent matter and will have to get back to the reporter. Reporters are on deadline frequently and have to put off other tasks to finish what they are working on so that it can be submitted for publication. The vast majority of them will be sympathetic to you and will have no issue with you getting back to them, provided that you do the next step.

2. While on the phone, ask these three important questions.

“What are you working on?”, “What would you like from me or my organization?”, and “When is your deadline?” The reporter’s answers to these three questions will provide you with the information you need to craft a response.

The first answer will guide the substance of your response. It could also provide you and your organization with an early warning that some aspect of your organization is under fire, or could come under fire, by the media, the public, your customers, etc.

The second answer will guide the form of your response and the work necessary to produce that response. Is the reporter looking for a brief response to a legal allegation? Is he or she looking for you to provide detailed answers to a number of questions? Does the reporter want to interview you? These various responses will require differing resources and preparation.

Finally, the third answer will guide your timetable to respond. Does the reporter need a response by close of business today? By later this week? By two weeks from now? This is vital information. And, this kind of question allows you to—again—endear yourself to the reporter and build a relationship by showing that you understand the nature of his or her business and its demands.

3. Identify the people at your organization who should assist with a response.

Now that you know what the reporter is working on, what they want from you, and how long you have to give it to them, you can now strategize about the response. The nature of the response will dictate how much work you will need to do and whether you will need assistance from particular colleagues or service providers. Anytime a reporter calls, you should make sure to notify any marketing or public relations people you work with, no matter if they are in-house or at an outside firm. They might have information about the reporter that could be helpful, and might have even worked with that reporter previously. In addition, they could help you develop the substance of your response and make sure that your response syncs with your previous branding and marketing efforts. 

Moving beyond your marketing/public relations colleagues, the nature of the request will dictate who else you should speak with. Is the reporter investigating an issue that could pose legal problems for you? You should make sure your legal team is aware of the request and seek their input. Does the reporter want to know something about how your organization’s products or services work? You should be sure to involve salespeople, technical staff, or senior executives with knowledge of these details. While “softball” inquiries from reporters are unlikely to require significant input from colleagues, the more significant (and problematic for your organization) the topic the reporter is investigating, the more likely you will need assistance with the response.

4. Draft a response and determine who the spokesperson will be for your organization.

With your response team assembled, you can now draft the response. While, again, the nature of the reporter’s inquiry will dictate the substance and form of your response, there are three overarching rules to follow. First, your response should be substantive. “No comment” or “We decline to comment” are invitations to the public, your clients, your employees, and any other key audiences to engage in conjecture and to assume the worst about any alleged wrongdoing on the part of your organization. Second, your response should be truthful. Any attempt to be deceitful will come back to bite you down the road, and will likely cause more problems than if you were upfront about any unflattering information from the get go. Third, your response should have a persuasive purpose. That could mean convincing would-be clients to consider your organization the next time they are in need of its services, or convincing the public that any allegations of wrongdoing are unfounded and false.

Depending on the reporter’s inquiry, you may need to consider who will be the spokesperson for the organization. Should it be the owner or an executive? Should it be someone with technical background about the subject of the inquiry? Should it be a public relations person? A rule of thumb for determining who the spokesperson should be is that the brighter the spotlight, the higher up the spokesperson should be. If there is a profile of the organization in a prominent media outlet, it should be an executive or owner. If the organization is being mentioned in a trade publication for its use of a particular new technology, the spokesperson should be the person at the organization most knowledgeable about that technology.

Whoever the spokesperson is, if the response is provided in real time through an interview, that spokesperson should practice beforehand with a mock interview. This exercise should include mock “curveball” questions from colleagues to simulate a reporter asking questions that move away from the core of the original inquiry and could catch the organization’s representative off-guard.

5. Respond.

After finalizing your response to the reporter’s inquiry and practicing the response if necessary, you can respond to the reporter in the manner he or she requested. When you do, you should encourage the reporter to contact you if he or she has any questions or needs any additional information from you above and beyond what you have provided (and what he or she might have originally requested). Be sure to let the reporter know if you will be out of the office or otherwise tied up and unable to respond promptly to additional requests over the next 24 hours or so. This may help prevent any missed opportunities for you or your organization to comment further to the reporter concerning any last-minute developments in his or her reporting.

For most people, an out-of-the-blue inquiry from a reporter can be a terrifying experience. Adding to that sense of terror is the fact that a mishandled inquiry from a reporter can lead to heavy damage to an organization’s reputation and prosperity. A strategic and orderly process for handling a reporter’s inquiry—such as the one I described above—can help minimize that sense of terror and ensure that your organization’s response will be serve the organization’s interests no matter what the nature of the inquiry is.

Wayne Pollock is the founder and managing attorney of Copo Strategies in Philadelphia, a limited scope, boutique law firm helping other attorneys and clients make those clients' cases in the Court of Public Opinion. He is also a Director at Baretz+Brunelle, a national communications firm that has been named the "Best PR Firm for Law Firms" by The National Law Journal and the New York Law Journal. Contact him at 215-454-2180, or @waynepollock_cs on Twitter.

Friday, November 3, 2017

Good Deeds Punished? The Legal Risks of Employee Community Service

With the holidays just around the corner, employers are busy planning their company-wide charitable initiatives. To support their employees’ commitment to community welfare, many employers match employee donations to charitable or educational institutions and publicize volunteer opportunities. Some organizations, however, are making a shift to a new way of corporate giving that percolates from the bottom up: encouraging employees to “get involved” through contributions of time and talent. 

More companies are creating Employee Volunteer Programs (EVP), continuous, managed efforts that allow employees the opportunity for hands-on service to the community. Employer programs are varied and innovative. Companies frequently contribute by getting the word out through community outreach that pairs organizations with employee volunteers who have particular skill sets and interests. While some employers provide paid time off for employees who volunteer, others simply permit employees to volunteer during working hours or facilitate participation in charitable enterprises during non-working hours.  This kind of volunteerism has many proven benefits including increasing employee satisfaction, enhancing community perceptions of the employer and providing tangible benefits to the larger community.

Despite good intentions, these “good deeds” come with the risk of liability under the Fair Labor Standards Act (“FLSA”) if not properly managed.  The FLSA is the federal law that governs the calculation and payment of wages.  In some instances, time spent by employees in charitable activities may be considered as compensable time under the FLSA, requiring the employer to pay wages and even overtime to employees for time spent volunteering.

The FLSA does not require employers to pay employees for time spent volunteering for religious, charitable, civic, humanitarian, or similar non-profit organizations when such participation is truly voluntary.  However, when charitable events or participation becomes intertwined with company activities, questions arise as to whether an employee may really decline to participate.  Because of disparities in bargaining power, employees may feel pressure by employers to engage in charitable activities. Such pressure may even be overt. For example, a directive to all employees to participate in a “community day of service” – without any opportunity for an employee to opt out – suggests that participation is not voluntary. Subtle employer pressure – such as reassignment to undesirable tasks for non-participants during the time when others are volunteering – also raises issues.

Time spent working at the employer’s request, or under its direction or control, or for a charity related to the company or the company’s owner, is considered work time. The Department of Labor takes the position that when, at the behest of the employer, employees volunteer to do the same type of work that they perform as part of their normal work duties, the volunteer work must be included in the employees’ hours worked calculations.

Awards for FLSA violations generally include fee shifting. Consequently, an employer who runs afoul of the FLSA will be required to pay the employee’s legal fees. Even if the unpaid wages are small, the imposition of attorneys’ fees could result in a significant liability for an employer.

The Takeaway

The key to avoiding FLSA liability is to ensure that employee participation is voluntary and to avoid any perception that an employee will be penalized if he or she fails to participate. It should be clear that the employees are volunteering their time to the third-party organization directly, not to the company itself.  Employees volunteering in a capacity similar to their paid work—for example, an accounting firm encouraging its accountants to provide accounting services for a charity—is particularly problematic.

Observing the following guidelines may reduce risk of an FLSA violation:
  • The charitable organization must be separate from the business and unrelated in a significant way to the business owners
  • The charitable event does not result in direct economic benefit to the business
  • The time spent at the organization or event is outside of regular working hours
  • The company notices about a volunteer event or opportunity include a statement that the employees are not required to attend or participate  
  • Supervisors are not allowed to direct or control their employees’ participation
  • Employees who choose not to participate in the event are not treated differently than employees who choose to participate
Utilizing these approaches may help to avoid FLSA liability or minimize liability if a claim does arise. We all want to start the holiday season on the right foot, and a methodical, cautious approach may be the only way that the good deeds of the employees do not result in repercussions for the employer.

Friday, September 15, 2017

If You Don't Have Anything Nice to Say, Post it on the Internet

It was an axiom of childhood: “If you can’t say something nice about someone, don’t say anything at all.” The reality of business in the internet age is that if you can’t say something nice about a customer experience … you will probably post a negative review on Yelp, Google, Angie’s List or a similar review site.

For better or worse, customer reviews can have a profound effect on how people view a business and on their purchasing decisions. A recent Nielsen study indicated that 74% of consumers who search online for a local business do so using review sites. Consumers do not limit their evaluation to counting “stars.” They take the time to read multiple comments, sometimes from multiple sites. Reviews are a double-edged sword as positive reviews make businesses more trustworthy, while negative reviews are a strong deterrent to consumers.

No business is immune from occasional negative reviews.  Marketing experts suggest that when faced with a bad review, businesses should provide a detailed reply to demonstrate the company’s overall responsiveness and its concern for the customer making the post.  Companies may also wish to encourage satisfied customers to write positive reviews, especially in those instances where they have received exceptional service. Eventually, the good reviews will “bury” any negative comments and provide a fuller picture of the company’s behavior.

Although some bad reviews are an almost inevitable part of doing business and actually can provide valuable feedback, some posts cross the line.  Reviews that falsely accuse a business of criminal acts or intentional malfeasance can severely damage a company’s brand or reputation – damage that can take years to reverse.  The motivation behind such unfounded posts range from a general disregard for the accuracy of statements, to intentional misstatements intended to punish the business for perceived failings. Such posts are not limited to customers; competitors and former employees sometimes also post false statements to damage a business. While litigation may appear to offer some relief, it comes with practical and legal challenges that must be considered before proceeding.

Elements of the Claim

Just because a review is bad doesn’t mean there are grounds for a lawsuit.  A review must be false to be actionable.  If a customer posts that there were cockroaches in the soup – and there were cockroaches in the soup – there is no claim for defamation.

The review must also be factual and not just the poster’s opinion.  Distinguishing between facts and opinion can be tricky.  Comments that service was rude, slow or unknowledgeable are likely statements of opinion and not actionable.  However, a post that says that the poster believes that waitstaff was rude because they spit in the food is more than an opinion. If unfounded, such comments can be the basis for a defamation suit.

Successfully demonstrating that a poster made false and malicious claims may be sufficient for a court to order the poster to remove the review but to recover monetary damages a business must generally be able to show that it suffered a financial loss because of a false review.  A drop in sales or a decrease in new customers is the typical metric.  Having a system in place – prior to any postings – that tracks sales leads, website traffic or new customers can be very helpful in quantifying losses.  In addition, it may also be possible to recover costs incurred for additional advertising or re-branding to combat a false negative review.

Don’t Expect Any Help from the Review Site

Business owners often expect that the review site will assist them in removing a false review.  They won’t.  Most review sites take the position that reviews contribute to the “marketplace of ideas.”  In their view, a bad review (even a false one) will be sorted out by the market over time.

Some sites take the “marketplace of ideas” mentality to an extreme by punishing businesses for suing or even threatening to sue a poster, even if the post is patently false.  For example, a business that sues or threatens to sue an Angie’s List customer may be banned from advertising on the Angie’s List site.  In addition, Angie’s List will place a prominent warning on the business’s page that company is “hostile toward an Angie’s List customer.”

Review sites can adopt this potentially radical position because of the Communications Decency Act. Section 230 of the Communications Decency Act gives immunity to sites such as Yelp, Google and TripAdvisor from claims based on the defamatory posts of independent third parties. Exceptions to such immunity are few and generally require that the internet site actively participated in or contributed to the negative reviews.

This does not necessarily mean that businesses are without options.  Courts may order internet sites to remove defamatory postings and most will voluntarily remove posts that a court has determined are false.

Act Fast

While evaluating options and determining the feasibility of a legal claim can be complicated, one thing is clear: business owners faced with negative reviews need to act quickly to devise a strategy to limit their injury and to evaluate their legal options. Once posted, a single negative review can proliferate and appear on multiple websites or be tweeted to other customers. Having a strategy in place in advance can make for a focused, more efficient response.

Timely evaluation of legal options is also important. In Pennsylvania, defamation claims must generally be brought within one year after the posting of the defamatory claim.  Although there are circumstances that could extend this period, acting quickly to understand both the scope and limitation of legal rights and to collect and monitor loss data, is important in mitigating any losses.
While negative reviews are always troublesome, having a marketing and legal strategy to address the most extreme comments are important tools for any business that operates on the internet.

Wednesday, August 16, 2017

Location, Location, Location: Mr. Nutterbutter loses home court advantage!

Via YouTube
Mr. Nutterbutter, of course, is a giant, talking squirrel, and sidekick of acerbic late night comedian, John Oliver. Mr. Nutterbutter and friends, John Oliver, HBO and Time Warner, Inc., were recently handed a legal defeat when a federal court in West Virginia refused a request to allow a lawsuit, based in part on Mr. Nutterbutter’s comments, to proceed in federal court.

The kerfuffle began when Bob Murray, CEO of Ohio based Murray Energy Corporation, was upset – very upset – with his portrayal in the June 18 segment of John Oliver’s Last Week Tonight. During the show, political comedian John Oliver took aim at Murray and other coal company executives for their opposition to coal safety regulations and for their treatment of coal miners.

Oliver’s criticism was not limited to the Murray Energy Company. He criticized Murray personally, referring to him as a “geriatric Dr. Evil.” He also took Murray to task for claiming that an accident at Murray Energy’s Utah mine which resulted in nine fatalities, was the result of an earthquake. Oliver disputed Murray’s explanation, citing a Congressional investigation that had no evidence of a geological event.

Mr. Murray’s ire was increased when Oliver recounted the actions of two Murray Energy employees who returned bonus checks. One employee returned a check for $11.58 after signing it “Kiss my ass, Bob” while another returned a check for $3.22 after signing it “Eat shit, Bob.”  Mr. Nutterbutter, the human size squirrel, endorsed the employees’ actions by offering Mr. Murray a check for “3 acorns and 18 cents…made out to Eat Shit, Bob, memo Kiss My Ass.”

Apparently Mr. Murray had anticipated his harsh treatment at the hands of Mr. Nutterbutter and John Oliver. Prior to air, Murray’s attorneys sent a cease and desist letter to Last Week Tonight, threatening legal action. The communication was not an idle threat.  Over the past fifteen years, Mr. Murray was not shy about asserting his legal rights, suing local reporters, environmental activists and media outlets.

Undeterred by Mr. Murray’s letter or willingness to litigate, the show aired, with both John Oliver and Mr. Nutterbutter acknowledging the risk of a lawsuit.

Murray made good on his threat: he filed an action in state court in West Virginia against Oliver, HBO, and Time Warner, claiming defamation, invasion of privacy and intentional infliction of emotional distress. Describing the nature of his distress, Murray’s complaint states that the broadcast upset him more than anything else ever had (which presumably includes the deaths of the nine employees killed in one of his mines).

The case attracted the attention of the American Civil Liberties Union (“ACLU”) which filed an amicus brief – which was almost as entertaining as the original on behalf of Mr. Nutterbutter.

Unfortunately for Mr. Nutterbutter and his friends, the plaintiffs seem to have won the first round by defeating a motion by the defendants to remove the action to federal court. This means that the action will be tried in West Virginia state court. Mr. Murray further demonstrated his willingness to play hardball by filing an unusual motion seeking to disqualify the ACLU’s amicus brief.  Mr. Murray’s lawyers argued that that Oliver’s previous on-air support of the ACLU and his fundraising, biased the ACLU on Oliver’s behalf and created a potential financial interest of the ACLU in the outcome.

While the foregoing may seem like pointless procedural wrangling, with little to do with whether Mr. Murray has suffered any injury, knowledgeable litigators know that such actions represent strategic decisions which can have an enormous impact on the outcome of the case.

As in real estate, the “location” where a law suit is filed is important. There is significant variation among states and between the federal and state courts. These differences can be an advantage for one party or an additional hurdle for the other. Each state has its own laws of civil procedure and evidence which determine how a case will proceed and how it will be decided.  For example, a twelve person jury is not always required in state civil trials. States allow juries of as few as six members and do not always require a unanimous decision in non-criminal proceedings.

State court dockets may impact how long it takes to bring a case to trial while state rules of evidence determine what evidence is presented to a jury. Many states, including Pennsylvania, elect judges who may potentially be subject to real or imagined political pressure from one of the parties. And, as in sports, there is also a real “home-team advantage” in litigation. Juries and judges may be unconsciously biased in favor of a person or company that is or has been a significant benefactor of a community, or who is simply more “relatable” than an anonymous, out-of-state party.

In addition to procedural laws, each state has it own substantive version of torts such as defamation, intentional infliction of emotional distress and invasion of privacy. While the core elements of each of these claims are similar from state to state, there are differences which can be significant. For example, the interpretation of some state versions of these torts may make it extremely difficult to secure an award of punitive damages, while other states are more willing to impose damages unrelated to any economic detriment.

The posture of the parties may also make a difference. Media defendants claiming First Amendment protections have not fared as well in state courts as in the federal court system. In a recent case, Hulk Hogan sued Gawker,[1] an on-line entertainment news outlet, for invasion of privacy. Despite Gawker’s status as a member of the media, a Florida jury awarded Hogan $115 million in compensatory damages and $25 million in punitive damages. Contrast this with the famous Hustler case of 1988,[2] in which evangelical and political leader Jerry Falwell, was parodied in a satiric article. The Supreme Court ruled in favor of Hustler, and limited the ability of a public figure to recover against a media outlet for a comic portrayal.  While every case, particularly those involving defamation, depend on the exact words utilized, the accuracy of the comment, and the manner in which a reasonable person might interpret such language, it is undeniable that the forum for litigation can have a significant impact on the outcome.

While basketball teams – and squirrels – can certainly overcome the challenges of not having a home court advantage, it is not without effort and the assistance of able counsel. But all is not lost. Mr. Nutterbutter may have other friends willing to file amicus briefs on his behalf.  It is rumored that noted commentator, Triumph, the insult dog, is considering a brief in support of Mr. Nutterbutter. Whatever the outcome, the litigation promises to be at least as entertaining as the segment that gave rise to it all. Nuts to you, Mr. Nutterbutter!

[1] Gawker Media LLC v. Bollea, 129 So. 3d 1196 (Fla. 2014).
[2] Hustler Magazine Inc. v. Falwell, 485 U.S. 46 (1988).

Monday, July 17, 2017

Four Factors to Consider Before Including Arbitration Provisions in Agreements

Arbitration provisions are a common feature of the agreements we review and prepare for clients.  They require the parties to the agreement to submit some or all of the disputes between them to arbitration before one or more arbitrators rather than litigating in court. 

There are several traditional justifications for favoring arbitration. Some are more persuasive than others.

Consideration #1: Arbitration is Cheaper than Going to Court

Many attorneys will justify arbitration by claiming that it is cheaper than going to court.  Savings are theoretically achieved because most arbitrations have limited discovery and little or no motion practice.  Less discovery and fewer motions to write and respond to means less attorney billing.  By contrast, a court proceeding may involve significant discovery and elaborate motions practice.  This generalization is often honored in the breach. However, a complicated arbitration can involve significant discovery.

The fees for the arbitrator or arbitrators themselves can also be significant.  In a court proceeding, the judge, the clerk and other court staff are all paid by the state or federal government.  For the cost of a filing fee (almost always less than $500), a litigant gets the benefit of all these resources.  An arbitration is not subsidized by tax money.  The parties to an arbitration pay the fees for the arbitrator (which are often more than $500 an hour), a fee for the organization that administers the arbitration (which is typically based on the amount of money in dispute) and a fee to rent the office where the arbitration will take place.  Many arbitration provisions call for multiple arbitrators, increasing fees to thousands of dollars per day.

Consideration #2: Arbitration is Faster than Litigation

Arbitration is relatively fast.  Whether it’s faster than litigation depends on your court options.  The federal courts, particularly in the Eastern District of Pennsylvania and the Court of Common Pleas in Philadelphia County, process cases very quickly.  Other state courts, for example those located in Bucks or Lancaster county, tend to move more slowly.

Consideration #3: Arbitration is More Private than Ligation

Arbitration is undeniably more private than litigation.  Nearly all filings in a court proceedings are in the public record.  Many proceedings have a verbatim record of what transpired.  Even the courtrooms themselves are open to the public.  In many courts, the public can access and download court records from the Internet.  Not so with arbitration.  The only people allowed to access the arbitration proceedings are the parties and the arbitrator.

Consideration #4: Arbitration is Final

A disappointed litigant can appeal a court’s decision at least once.  When arbitration works the way it should, the decision of the arbitrator is extremely difficult to appeal.  This helps to reduce costs and brings finality to disputes. 

But arbitration does not always go the way it should.  There are a number of procedural machinations available to an attorney wishing to avoid or delay an arbitration by challenging the arbitrator’s jurisdiction or claiming impartiality.  These sideshows can quickly eclipse the speed and finality of an arbitration.

The Take Away

Although there is an increasing emphasis on submitting disputes to arbitration, we discourage clients from kneejerk inclusion of arbitration provisions in their agreements.  The professed benefits of arbitration often fail to materialize either because the arbitrator’s fees exceed any cost savings or because the propriety of an arbitration ends up in a prolonged court battle.