A Tale of Junk Faxes, Wily Lawyers, and Super Bowl Seasickness

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faxThere’s very little common sense to be found in this story.

Dubious Fact No. 1:  When the folks who ran Firefly American Bistro behind Boston’s Copley Place received an unsolicited fax inviting them to a 2007 Super Bowl party on a cruise ship, they did not do what the rest of us would do: deposit it immediately in the circular file, to be picked up with the evening trash.

No, the restaurant’s parent company—quaintly known as Hazel’s Cup and Saucer—called its lawyers, who filed what they hoped would be a class action lawsuit.

Dubious Fact No. 2: The lawyers then engaged in what the Massachusetts Appeals Court described as “difficult and costly procedures” to engage an expert witness and hunt down the sender of the fax: a Florida travel agency using a New York fax broadcasting agency known as “Business to Business Solutions.”

Dubious Fact No. 3: Under the federal Telephone Consumer Protection Act, the 1,640 recipients of the 2,000-plus junk faxes, if certified as a class by the court, would potentially be entitled to anywhere from $1.1 million to more than $3.4 million.  Of which the lawyers would, of course, get their cut.  (Maybe those lawyers knew what they were doing, after all.)

Seized by a moment of startling clarity and good sense, Superior Court Judge Frances McIntyre thought an award of that size would be preposterous, given that “the nature of the harm suffered by individual claimants—the cost of paper, ink, and toner—amounts to pennies.” To allow such claims to proceed as class actions, she said, would result in the TCPA being used by lawyers “as a device for the solicitation of litigation.”

So Judge McIntyre threw the 1,640 junk-fax recipients out of court, and sent them down the street to seek redress in Small Claims Court, where they could each receive automatic damages of $500.

Today, the Massachusetts Appeals Court (here comes Dubious Fact No. 4) reversed Judge McIntyre’s ruling, saying that anyone hiring a lawyer to bring a TCPA claim in small claims court would end up paying more for the lawyer than she or he would ever conceivably gain in a damages award.  (That’s sensible enough – until you ask yourself, “Who hires a lawyer to bring a claim in Small Claims Court?”)

The Appeals Court said the class action can now proceed in Superior Court.  That ruling seems plainly correct under the law–proving that, in the immortal words of Mr. Bumble, “The law is a ass.”

The ruling, while sound, leaves unanswered three pressing questions that confound this commentator.  The first:  “Who will benefit from this lawsuit other than the lawyers?”  The second: “Who sends faxes anymore?”  The third: “Who’d want to go a Super Bowl party on a cruise ship, anyway?”

Have at it in the comments: Can you explain to me what I’m missing?

–Robert A. Bertsche

Robert A. Bertsche

Prince Lobel Wins Appeal Affirming Availability of Escrow Arrangements for Secured Creditors

Prince Lobel attorneys Thomas M. ElcockKristin M. Knuuttila and Thomas R. Sutcliffe representing BHC Interim Funding II, LP and BHC Interim Funding III, LP (“BHC”) recently won an appeal before the Massachusetts Appeals Court in an important case involving questions of first impression under Article 9 of the Uniform Commercial Code.  BHC had intervened in a Superior Court case and sought to enforce its prior perfected security interest in funds that a judgment creditor, William Zimmerling, was trying to claim.  The Superior Court judge entered a preliminary injunction placing the disputed funds in escrow pending resolution of the competing claims.  Zimmerling, however, argued that once the funds were placed in escrow, BHC’s prior security interest was extinguished under M.G.L. c. 106, § 9-332(b).  Section 9-332(b) states that “[a] transferee of funds from a deposit account takes the funds free of a security interest in the deposit account.”  Zimmerling reasoned that, when the funds were placed into escrow, they were “transferred” either to the escrow agent (by virtue of the agent having physical control over the funds) or to Zimmerling (by virtue of his having received an equitable interest in the funds).  The Superior Court disagreed and ruled in favor of BHC.  Zimmerling appealed.

Prior to this dispute, no Massachusetts appellate court had opined on the meaning of the word “transfer” under Section 9-332(b).  Furthermore, case law in other jurisdictions was scant, and some of what did exist supported Zimmerling’s position.  The Appeals Court, however, relying heavily on arguments that Prince Lobel had made, concluded that neither the text of Section 9-332(b), nor the policy rationale behind that provision, supported a reading that would extinguish a creditor’s interest in funds simply because those funds were placed in escrow.  The Court determined that Zimmerling was not himself a “transferee.”  As the Court explained (and as Prince Lobel argued in the Superior Court and on appeal), the plain language of Section 9-332(b) applies only to a transfer “of funds” – i.e., the actual receipt of the funds themselves, not just a mere equitable interest.  The Court rejected Zimmerling’s claim that the escrow agent was a transferee because (as Prince Lobel had also argued), the escrow agent simply held the funds as a fiduciary and therefore did not have legal title.  The Court further determined that case law to the contrary in other jurisdictions was unpersuasive.

The Court further observed, as had Prince Lobel both in its briefing and at oral argument, that there were strong policy reasons for not allowing the placement of funds into escrow accounts to affect prior security interests. The purpose of Section 9-332(b) is to ensure the liquidity of funds and the finality of transactions in which funds are exchanged. But as the Court also recognized, “[b]y definition, a court-ordered escrow account is the antithesis of finality”; such escrow accounts, rather, are intended to freeze money pending resolution of the parties’ claims.  Therefore, the Court concluded, Zimmerling’s argument, when “[t]aken to its logical conclusion, . . . would render inoperable the use of escrow agreements in commercial transactions involving secured parties,” a result that would impede the U.C.C.’s goal of  “‘permit[ting] the continued expansion of commercial practices through custom, usage, and agreement of the parties.'” (quoting M.G.L. c. 106, § 1-103(a)(2)).

The Court’s decision applied a pragmatic analysis that accommodates both the importance of ensuring the liquidity of funds and the reality of commercial transactions involving escrow accounts – particularly where a court orders money placed into escrow.  Whether other jurisdictions will follow Massachusetts’s lead remains to be seen.

A copy of the Appeals Court’s decision can be found here.

For further information please contact Thomas M. Elcock at 617 456 8155, telcock@PrinceLobel.com, Kristin M. Knuuttila at 617 456 8170, kknuuttila@PrinceLobel.com, or Thomas R. Sutcliffe at 617 456 8054, tsutcliffe@PrinceLobel.com, the authors of this alert and counsel for BHC.

ElcockKnuuttilaSutcliffe

Massachusetts Ruling Reduces Access to Criminal Court Records

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Analysis and discussion by Robert A. Bertsche

In a stark about-face, the highest court of Massachusetts today took a step toward reducing access to criminal court records.  It reversed its own ruling from 20 years ago—and picked a fight with the federal First Circuit Court of Appeals that could someday be decided by the U.S. Supreme Court.

The unanimous 46-page decision from the Supreme Judicial Court is a victory for individual privacy rights at the expense of public access to the court system.  It was a bow to our age of “rapid informational access through the Internet and other new technologies.”

The Court made it substantially more likely that a certain category of criminal court records—those that have been dismissed or have been the subject of a “nolle prosequi,” or decision not to prosecute—will simply vanish from public view.

Less than 20 years ago, the same Court had ruled that the First Amendment required a strong presumption favoring public access to the records of such cases.  But the Court said today that its 1995 decision “no longer achieves the proper balance of interests,” and it lay down a new standard that makes it far easier for secrecy to prevail.

* * *

Imagine this not-entirely-hypothetical scenario:

It is 2017, and the mayor of Smalltown, Mass., is considering his nephew, John Johnson, to be head of the town’s Department of Public Works. 

You hear a rumor that, some years ago, Johnson was picked up by police. You ask Johnson about it, and he insists he has no criminal record. You go to Smalltown District Court, but you find no criminal records about him.  

Nonetheless, and unknown to you, the rumors are true.  In 2014, before he ever got involved in town affairs, Johnson was charged with operating a motor vehicle while under the influence of alcohol (OUI) and leaving the scene of an accident.

He admitted to facts sufficient for a finding of guilty, and in 2015, a Smalltown Municipal Court judge continued the charges without a finding for one year, suspending Johnson’s driver’s license for 45 days and sending him to rehab. 

A year later, the judge dismissed the case on the recommendation of the probation officer—who just happened to be the niece of Smalltown’s state representative.

Why couldn’t you find any court records?  Because as of today, under Massachusetts law as re-interpreted by the Supreme Judicial Court in Commonwealth v. Pon, Johnson only had to meet a deferential standard of “good cause” before getting his entire criminal case file sealed.   The decision makes it clear that facts like those described above would warrant a judge to find that the “good cause” bar had been met.

* * *

Here’s what you should know about today’s decision:

  • The Standard For Sealing Is Far Easier to Meet Than It Was Before. 

By statute (G.L. c. 276, § 100C), a judge may seal the criminal record of a former criminal defendant whose case resulted in entry of a nolle prosequi or a dismissal, if the judge determines that “substantial justice would best be served” by sealing.  The question in 1995, and again in 2014, was what those words really mean.

In 1995, in Commonwealth v. Doe, the SJC said that sealing the record is permitted only if the defendant proves “that the value of sealing … clearly outweighs the constitutionally-based value of the record remaining open to society.”  It said that sealing “should occur only in exceptional cases,” and that an individual’s general reputational or privacy concerns aren’t enough.  “A defendant must show that specific harm is threatened by the continued existence of the record.”

The Court in 2014 is singing a different tune.  Now, the requirement of “substantial justice” is met merely by a showing of “good cause” for the secrecy.  That’s the same standard that governs when a court is asked to impound a particular document in the court record—but here it is being applied in a far more extreme setting, one in which the entire case is being made to disappear from public view.

  • The Court Makes It Sound Easy to Establish “Good Cause.” 

The decision says “good cause” for secrecy is determined by a balancing test.  But while it says it is striving to provide “clearer guidance” than under the prior standard, the scales it establishes seem already weighted in favor of sealing.

In one pan, the Court heaps amorphous ideals: the “general principle of publicity,” and the public’s “general right to know so that it may hold the government accountable.”  Quoting its 1995 decision in Doe, the court does concede that “‘[e]ven [where] a case has not been prosecuted, information within a criminal record may remain useful’ to the public.”

The other pan overflows even before the weighing has begun.  The SJC says there are “compelling” and “fully articulated” “governmental interests in reducing recidivism, facilitating reintegration, and ensuring self-sufficiency by promoting employment and housing opportunities for former criminal defendants.”

Judges don’t even have to make case-specific findings on that point; they “may take judicial notice that the existence of a criminal record, regardless of what it contains, can present barriers to housing and employment opportunities.”  Those barriers are “heightened by the immediate and effectively permanent availability of criminal history on the Internet.”

As to the specific factors to be considered, the following is the non-exclusive list laid down by the Court:

–“the particular disadvantages identified by the defendant arising from the availability of the criminal record”;

–“evidence of rehabilitation suggesting that the defendant could overcome these disadvantages if the record were sealed”;

–“any other evidence that sealing would alleviate the identified disadvantages”;

–“relevant circumstances of the defendant at the time of the offense that suggest a likelihood of recidivism or of success”;

–“the passage of time since the offense and since the dismissal or nolle prosequi“; and

–“the nature of and reasons for the particular disposition.”

  • The First Circuit Court of Appeals No Longer Matters.

The Supreme Judicial Court had reached its anti-sealing ruling in 1995 by adopting the reasoning of a 1989 ruling from the federal First Circuit Court of Appeals.  In 2014, the SJC is defiantly going it alone, noting that state courts “‘are not bound by decisions of Federal courts except the decisions of the United States Supreme Court on questions of Federal law.’”

In a footnote, the Court turns the principle of stare decisis on its head.  It notes that the relevant federal precedents are more than two decades old, from which it concludes that because “our society has changed drastically since either we or the Federal courts have given great thought to the consequences of sealing,”  Therefore, “[c]learly, the issue is ripe for revisiting….”

  • The First Amendment No Longer Matters. 

In 1995, following the lead of the First Circuit , the SJC repeatedly spoke of the First Amendment-based “constitutional right of access to judicial records.” By 2014, the First Amendment is on the sidelines: “We conclude that the records of closed criminal cases resulting in these particular dispositions are not subject to a First Amendment presumption of access.”

The Court acknowledges that its conclusion is “at odds with that of the First Circuit” and other federal appellate courts, but finds solace in the fact that “at least one” other state supreme court (Florida) has reached the same result.  Take that, First Circuit.

  • In Fact, the Real World Doesn’t Matter Much, Either.

The Court briefly acknowledges that commercial background check services may disclose the criminal arrests that are meant to be hidden by a court-ordered sealing of records.  While noting that such services are “immune in practice (but not in law) from sealing,” it says that to factor in the futility of court-ordered sealing would lead to the apparently unacceptable result of barring sealing altogether: “Were we to accept this argument, sealing would never be justified.”

There is a second problem with the commercial background check services: that they can be inaccurate, a fact that the Court acknowledges.  The Court fails to note, however, that if actual court records are put under lock and key, then the public and media will be more likely to turn to those commercial services.  In other words, unreliable information will take the place of reliable information.

  • The Court Might Apply a Different Analysis if the Arrestee is a Public Figure.

One can take some comfort from the fact that the Court notes, in an aside, that if the former criminal defendant is a public figure, then “a different analysis may be necessary.”  Certainly it seems less justifiable to seal a sitting politician’s past brushes with the law, than to seal the same material when it relates to a private individual.  The problem is that today’s private individual may be tomorrow’s public figure.  In the hypothetical above, John Johnson obtains sealing as a private figure; only later does he go into public life, and by then his prior arrest record is safely hidden away.

  • This Decision May Be Just the Beginning.

The Court says it will not address the public-figure issue because “those facts are not before us.”  It is not as reticent when it comes to discussing whether the eased sealing standard it sets out should also apply to the records of criminal court proceedings that end in an acquittal instead of a dismissal or nolle prosequi.  In a page-long footnote, the Court suggests that even if one cannot enforce the purported statutory requirement of mandatory sealing of court records of cases that result in acquittals, nonetheless discretionary sealing can occur, and should be subject to the same “good cause” standard.

* * *

It should not, perhaps, be altogether surprising that the SJC has established a new, more deferential standard for sealing of certain cases.  The Court is primarily concerned with effectuating what it sees as the legislative goal of CORI reforms: to foster rehabilitation and integration into the community of former arrestees, and to reduce the housing and employment blacklisting of those who have been through the judicial system and come out of it without a criminal conviction.  The Court is also concerned that the legislative goal is made more difficult by the impossibility of erasing facts from the Internet.

What is surprising, and disturbing, about the Pons decision is how little discussion there is of the public right to know, or the media’s role in monitoring the integrity of the judicial system.  Take the hypothetical of John Johnson, above.  In that situation, there is a public interest in knowing why the charges against John Johnson led only to a continuance without a finding, followed by a dismissal after a politically connected probation officer testified.

If You Don’t Like This Decision: Who’s to Blame?

CALL TO ACTION:  Perhaps those of us who represent the media and who advocate for public access to the courts have ourselves to blame.  The Supreme Judicial Court routinely calls out for amici curiae to submit briefs to help the Court consider points of view that will not be adequately represented by the parties.  In this case, such briefs came only from parties who supported a more deferential sealing standard.

Is it time for a coalition of public access advocates and media entities to step up to the plate to be sure that the arguments in favor of public access are adequately represented to the Court?

Robert A. Bertsche is a partner in Prince Lobel’s Media and First Amendment Law Practice. You can reach Rob at 617 456 8018 or rbertsche@PrinceLobel.com.

How Media Coverage Affects Judicial Independence

Click on the image to check out Rob Bertsche’s first Storify, based on live tweets from the American Bar Association’s Annual Conference in Boston on Aug. 8, 2014.

Bertsche Storify

Robert A. Bertsche is a partner in Prince Lobel’s Media Practice. You can reach Rob at 617 456 8018 or rbertsche@PrinceLobel.com.

The Administration of Psychotropic Drugs in Nursing Facilities

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Will the Massachusetts Department of Public Health (MDPH) provide clarity on the administration of psychotropic drugs in nursing facilities when it implements Outside Section 140 of the Fiscal Year (FY) 2015 Massachusetts State Budget, or will nursing facilities still find themselves in a Catch–22 situation?

Outside Section 140 of the FY 2015 Massachusetts State Budget amends the nursing facility licensure statute to allow the administration of “psychotropic drugs” (to be listed on a schedule established by the MDPH) to a resident, if a facility obtains informed written consent (on a form approved by the MDPH) from the resident, the resident’s health care proxy, or the resident’s guardian.

According to a MDPH Circular Letter issued in 2003, a valid health care proxy (HCP) agent can consent to antipsychotic drugs (which is a psychotropic drug) without having to obtain a court approved treatment plan under Rogers v. Commissioner of the Department of Mental Health, 390 Mass. 489 (1983) if the following two conditions are met: (1) the resident has not limited the HCP agent’s authority to consent to treatment with antipsychotic medications on the HCP form and (2) the resident has not revoked or indicated an intent to revoke the HCP, for example, the resident has not refused to accept antipsychotic medication.

Is a resident’s refusal to accept antipsychotic medication an indication of an intent to revoke the HCP? Or is it merely a consequence of the resident’s underlying mental illness that resulted in the resident’s physician determining that the resident lacks the capacity to make health care decisions, thus invoking the HCP? Put another way, if the resident is not competent to make health care decisions, how can the resident form the requisite intent to revoke the HCP?

The following fictional account of a resident in a nursing facility illustrates the problem:

Resident A is an 86 year-old male who is a Holocaust survivor. He was admitted to a nursing facility on June 24, 2014. When he was admitted to the facility he was competent. He had executed a health care proxy several years ago appointing his wife as his health care agent. A month after his admission to the facility Resident A began to exhibit signs of a psychotic break. During the last few weeks he has suffered from delusions and paranoia. Resident A appears to think that he is a soldier who is a prisoner of war. He is belligerent toward the facility’s staff and toward his wife when she visits. He issues commands to the staff to refrain from approaching him and if they do approach him he spits on them. His treating physician has determined that he lacks the capacity to make health care decisions, thus invoking his HCP. His physician has recommended the administration of antipsychotic drugs in accordance with a treatment plan to control the resident’s delusions and paranoia. His HCP has consented to the administration of antipsychotic drugs. However, Resident A refuses to take the antipsychotic drugs orally, because he believes that the staff are trying to brainwash him.

The MDPH Circular Letter issued in 2003 states: “Please note that a refusal to accept antipsychotic medication may indicate an intent to revoke the health care agent’s authority. In such situations, the facility should take steps to obtain court authority to treat.”

Is Resident A’s refusal to take the antipsychotic drugs an indication of an intent to revoke the HCP’s authority or is it due to his delusions and paranoia? Should the facility take steps to obtain court authority?

Stay tuned to find out whether the MDPH provides clarity on the administration of psychotropic drugs in accordance with Outside Section 140 of the FY 2015 Massachusetts Budget.

If you have any questions about the administration of psychotropic drugs, health care proxies, or guardianships, please contact Rochelle H. Zapol, a partner in Prince Lobel’s Health Care Practice Group and the author of this post. You can reach Rochelle at 617 456 8036 or rzapol@PrinceLobel.com.

Zapol

Rochelle Zapol

Informed Consent – Back to Basics

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The Department of Health and Human Services’ Agency for Healthcare Research and Quality recently published notice of its intention to request that the Office of Management and Budget approve a proposed information collection project entitled “Improving Hospital Informed Consent with an Informed Consent Toolkit.” The Agency for Healthcare Research and Quality is concerned about the effectiveness of hospitals’ informed consent policies and processes. However, the issue of informed consent also affects other health care providers.

Whether you operate a hospital, long term care facility, physician practice, or other type of health care facility, you should be asking yourself the following questions about informed consent:

  • When is the last time you reviewed and updated your informed consent forms?
  • Does the informed consent form advise the patient of the risks and benefits of the proposed treatments or procedures?
  • Does the informed consent form advise the patient of alternative treatments and the risks and benefits of the alternative treatments?
  • Is the informed consent form easy to understand?
  • If your patient population has limited English proficiency, do you provide informed consent forms in other languages representative of your patient population or do you provide interpreter services?
  • Do you regularly review and update your informed consent forms to reflect new alternative treatments or newly discovered risks and/or benefits of existing treatments?
  • If you operate a long term care facility, do you have an informed consent form to obtain written consent from a resident who is competent prior to administering psychotropic medication?
  • Have you provided the patient with the opportunity to ask questions and have you adequately answered those questions?
  • Are your informed consent forms written in a way that minimizes liability?
  • Is the patient legally competent? If not, is the person signing the informed consent form the patient’s legally authorized representative?

If you have any questions about informed consent or would like assistance in updating your informed consent forms, please contact Rochelle H. Zapol, a partner in Prince Lobel’s Health Care Practice Group and the author of this alert. You can reach Rochelle at 617 456 8036 or rzapol@PrinceLobel.com.

Zapol

Rochelle Zapol

 

 

Asya Calixto Answers NENPA’s Media Law Hotline “Question of the Week” on Public Records

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Question: I am reporting on a Massachusetts town’s search for a candidate to fill the position of Town Counsel. The town appointed a committee to screen candidates for the position, and the committee announced that it will meet in a closed session to review and discuss the applications. Can they do this, or must their meeting be open to the public?

Answer: Massachusetts law provides that the meeting of a public body to discuss candidates for a job position is, like all meetings of public bodies, presumptively open to the public. If a public body tasks a subcommittee with screening the candidates, however, the law permits the subcommittee, under certain limited circumstances, to meet in executive session. (If a public body chooses to review applications itself, without appointing a subcommittee, it must do so in a public session.) A subcommittee must be comprised of less than a quorum of the public body, and it may only meet in private if the following two conditions are met: (1) the subcommittee’s meeting is a “preliminary screening” and (2) meeting in an open session would have a detrimental effect on obtaining qualified applicants for the position.

To read Asya’s complete answer, click here.

If you have questions about public records, please contact Asya Calixto, a lawyer in Prince Lobel’s Media and First Amendment Law Practice Group and the author of this alert, or Rob Bertsche, chair of Prince Lobel’s Media and First Amendment Law Practice Group. You can reach Asya at 617 456 8110 or acalixto@PrinceLobel.com, and Rob at 617 456 8018 or rbertsche@PrinceLobel.com.

The Media Law Hotline is a service offered free of charge to NENPA members in good standing, and is staffed by the media and intellectual property lawyers at Prince Lobel Tye LLP. You can reach the NENPA Hotline at 1-888-428-7490 or by email at media@princelobel.com.

Asya Calixto

Asya Calixto

 

 

 

 


Allianz’s Risk Barometer On Business Risks 2014: A Good Starting Point For Risk Managers and Insurers.

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For the past several years, global insurer, Allianz has issued an annual business “risk barometer” consisting of survey results ranking business risks faced by midsize companies and larger industrial companies. This year’s results are available here. And according to the survey, the top 10 global business risks are:

  1. Business interruption, supply chain risk
  2. Natural catastrophes
  3. Fire, explosion
  4. Changes in legislation and regulation
  5. Market stagnation or decline
  6. Loss of reputation or brand value
  7. Intensified competition
  8. Cybercrime, IT failures, espionage
  9. Theft, fraud, corruption
  10. Quality deficiencies, serial defects

The risks identified are hardly surprising, and some may question the validity of the survey of Allianz employees and consultants regarding risks facing their clients as an accurate predictor of business sentiment. Nevertheless, the barometer provides valuable insights for risk managers and specialty insurers – especially if one digs a little deeper into the data provided.

For example, cybercrime made it to the list for the first time this year, and that was before the recent data breaches reported by Target and others. The 2014 ranking of loss of reputation or brand value, which would seem to be related to concerns over cybercrime, jumped nearly 50% and was ranked as a top three risk by 21% of respondents for 2014 vs. 14% for 2013.

Risk managers that fail to take measures to identify, mitigate and/or efficiently transfer such risks, will have a hard time explaining their failures when the risk perception by their peers has been publicly acknowledged and documented.  Specialty insurers, already enjoying strong growth for insurance products addressing these risks, should also take notice of these developments.  Indeed, the survey results may imply a reverse in a trend observed by some. Click here for an article by IDG about the rise in data breaches and the resulting interest in cyberinsurance.

As is frequently the case, it will be important for insurers and risk managers to contemplate and converge on whether, and to what extent, these risks involve opportunities for efficient risk transfers vs. uninsurable core business risks. While insuring the value of an entity’s reputation from fortuitous (from the insured’s perspective) events presents a number of difficulties for insurers (e.g. valuation uncertainties, insurability of core business risks), the risk that a particular insured may suffer a defined event that warrants intervention by a crisis consultant to address reputational damage at the insurer’s expense may be eminently insurable.

For property and casualty insurers, the barometer may suggest that their core products (first party property insurance and CGL insurance) are becoming less relevant to their insured’s perception of business risks.  While many property insurers offer generic business interruption coverage (replacing business income when the Insured’s property suffers an insured physical loss), sophisticated supply chain interruption insurance (contingent business interruption) is difficult to underwrite and price and is far less available, notwithstanding the increasing importance of this risk to insureds as noted here.

In addition, while changes to the standard CGL policy over time have diminished coverage for reputational and soft IP risks (trademark and copyright) available in connection with the Personal  And Advertising Injury coverage available under the CGL Policy, the perception of the importance of such risks to insureds appears to have grown.

If you have questions, please contact Joseph S. Sano, a partner in Prince Lobel’s Insurance and Reinsurance Practice. You can reach Joe at 617 456 8000 or jsano@PrinceLobel.com.

Joseph S. Sano

Joseph S. Sano

Hiring Minors for Photo Shoots Isn’t Child’s Play

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Does your magazine, advertising agency, or film or television production company work with child models in photo shoots or videography? If so, have you budgeted time for snack and study breaks? Have you considered whether you need to arrange for nurses to be present?

Those are among the questions you must now ask, as the result of a recent change to New York law that brings models under the age of 18 under the protection of the state Department of Labor’s child labor laws – and New York’s new approach is part of a nationwide trend.  Most states have adopted laws regulating the employment of child performers, and many of the laws apply to the use of child models and child actors in photo shoots.

For example, Pennsylvania’s law governing child performers, enacted in 2012, explicitly applies to child models.  It requires that those conducting the photo shoot obtain third-party certification that the child’s work will not interfere with her academic studies, and that the child model obtain a work permit.  Massachusetts imposes strict age and hour restrictions for work by minors, and in many cases requires court approval before children may be exhibited in performances on radio, TV, or movies.

New York’s new law, DOL § 186, took effect November 22, 2013, and applies to a range of child performers.  It imposes additional paperwork requirements and, in some cases, compels magazines and others employing child performers to provide special accommodations. Even if your company is not based in New York, some of New York’s requirements will apply if you hire models that live in New York or if your shoot takes place there.

Employers that do not comply with these requirements may face fines of up to $1,000 for their first violation, $2,000 for their second violation, and $3,000 for their third violation. After a third violation, employers may be barred from employing child models altogether – not to mention the negative publicity of allegedly mistreating children.

If you engage in photo shoots with minors in New York, we suggest you plan ahead, staff the photo shoot appropriately, and be sure to allow enough time and physical space for the project.

Plan ahead: To help keep your company out of trouble, make sure that your paperwork is in order.  Here are five steps you should take in advance of a scheduled shoot in New York in order to comply with the updated law.

  1. Obtain a Certificate of Eligibility. You must obtain a Certificate of Eligibility before employing a child model. To do so, visit the New York State Department of Labor website to complete an Application for a Certificate of Eligibility to Employ Child Performers. Certificates are good for three years, and must be renewed no later than 30 days prior to expiration.
  2. Request to see the model’s Child Performer Permit. If you employ a child model for an individual performance (not as part of a background scene), you should ensure that the child holds a Child Performer Permit. To obtain such a permit, the child has to provide: (a) her school’s certification of her satisfactory academic performance, (b) her physician’s certification of her physical fitness, and (c) trust account information (see below).  Because the certifications and trust information may take some time to gather, it’s a good idea to start the process early, especially if you are dealing with a child model that is new to the business.
  3. Obtain an Emergency Contact and Permission Form. Prior to the shoot, you must also obtain emergency contact information from a parent or guardian, an authorization for emergency medical treatment, and the parent’s permission for the child’s performance.
  4. Make sure a financial trust has been set up.  A child model’s parent or guardian must set up a trust account for the child, and ensure that at least 15 percent of the child model’s earnings go into that account. Check with the child’s parent or guardian to verify that the trust has been set up and to make sure you have the information necessary to transfer payments into that account.
  5. File a Notice of Use.  At least two days before the shoot, you must file a Notice of Use with the Department of Labor. The notice is a one-page document, and requires basic contact information for your company and the child model.

Staff appropriately.  Make sure to arrange for a “responsible person” and a pediatric nurse to be present at the shoot, if necessary. 

  1. Designate a responsible person. You must make sure that someone 18 or over is present at the shoot to supervise the child model. This person can be the child’s parent or guardian, or it can be another adult.  The required ratio of responsible persons to child models depends on the ages of the children.
  2. Determine whether you need to hire a nurse.  If you employ a child model who is less than six months old, you must have a registered nurse with significant pediatric experience at the shoot. The required ratio of nurses to child models depends on the ages of the children.

Budget time and designate a space for breaks.  Familiarize yourself with the restrictions on the number of hours the child model may work, and the requirements for breaks. Keep in mind the following as you schedule the shoot:

  1. Limit Hours. The number of total hours, and of consecutive hours, that child models may work depends on their age and, if they are old enough to attend school, whether school is in session. For example, children between six and eight years of age may not spend more than eight hours on set.  They may not begin before 5 a.m., and may not stay later than 10 p.m. on school nights and 12:30 a.m. on other nights. Of the eight hours they may spend on set, children in this age group may not work for more than a total of four hours. For more information about restrictions on hours, see the DOL’s Child Performer Permitted Working Hours worksheet.
  2. Provide Food and Rest. You must allow for snack time and at least ten minutes of rest for every four hours a child model works. You must also provide a safe, clean, secure, and age-appropriate space for a child model to relax and eat.
  3. Accommodate Education. If you employ a child model who is required to be enrolled in school, you must allow time and space for studying and, under some circumstances, you must also provide a teacher for the child.

If you have questions about complying with the child performer rules in your state, please contact Asya Calixto, a lawyer in Prince Lobel’s Media Law Practice Group and the author of this alert, or Rob Bertsche, chair of Prince Lobel’s Media Law Practice Group. You can reach Asya at 617 456 8110 or acalixto@PrinceLobel.com, and Rob at 617 456 8018 or rbertsche@PrinceLobel.com.

Asya CalixtoBertsche_0813_colorwebres

Top 10 Considerations for Health Care Providers Under Massachusetts Medical Marijuana Law

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What recent statute and regulations describe actions that are legal under state law but illegal under federal law? The Medical marijuana statute and regulations. While it is now legal to use marijuana for medical purposes here in Massachusetts, it remains illegal under the Federal Controlled Substances Act and has not been approved by the Food and Drug Administration.

Health care providers seeking to comply with the new Massachusetts medical marijuana statute and its related Massachusetts Department of Public Health (MDPH) regulations will find that these contradictory state and federal laws raise some significant issues, such as:

  1. Will you “certify” in writing that it is appropriate for a patient to use marijuana for medical use if the patient’s medical conditions meet the MDPH regulatory requirements? The word “certification” as opposed to “prescription” is used in both the statute and the MDPH regulations.
  2. Have you developed policies and procedures for certifying or administering marijuana for medical use? Even if you don’t intend to issue such certifications or administer marijuana for medical use, what if patients who have been certified as appropriate to use marijuana are admitted to your health care facility?
  3. What is the potential liability for physicians who certify marijuana for medical use and for health care providers that administer it?
  4. How will the United States Attorney’s Office in Massachusetts follow the guidance regarding marijuana enforcement set forth in the so-called Cole Memorandum issued by the United States Department of Justice, Deputy Attorney General on August 29, 2013? The Cole Memorandum says that, where states have laws legalizing marijuana-related conduct and have regulatory systems in place to control compliance with those laws, the federal government will defer to state and local law enforcement and regulatory agencies to enforce those laws.
  5. Will physicians who certify marijuana for medical use retain their federal Drug Enforcement Administration (DEA) registrations?
  6. Will health insurers cover the cost of marijuana as a prescription drug when certified for medical use? Will they cover the cost of the clinical exam a physician is required to perform before certifying marijuana for medical use? Or the cost for a health care provider to administer the marijuana to a patient?
  7. Will Medicare or Medicaid cover the cost of marijuana for medical use?
  8. Will the Medicare/Medicaid certification status be at risk for providers who prescribe and administer medical marijuana?
  9. Will federal funding of community health centers be adversely affected if they certify and/or administer marijuana for medical use?
  10. Will federal grants and federal loans to health care providers be adversely affected if the providers certify and/or administer marijuana for medical use?

MDPH is now in the process of selecting the finalists who will receive one (or more) of the 35 medical marijuana dispensary licenses that will be available in year one. In the meantime, health care providers and administrators should consider the potential impact of these new regulations.

If you have any questions or concerns about how the medical marijuana regulations might impact you or your health care facility, please contact Rochelle H. Zapol, a partner in Prince Lobel’s Health Care Practice Group and the author of this alert. You can reach Rochelle at 617 456 8036 or rzapol@PrinceLobel.com.

Rochelle Zapol

Rochelle Zapol

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