We’re Moving! Prince Lobel Relocation News

Prince Lobel Tye LLP proudly announces its move to One International Place in Boston. The firm will relocate from its home (since 2006) at 100 Cambridge Street.

The move, which was prompted by the shifting office rental market in Boston, will allow Prince Lobel to retain its core values and reaffirm its commitment to expertly serving client needs. The new location is being designed with the goal of fostering a more collaborative and connected work environment.

Prince Lobel plans to transition to its updated space in 2016. Its attorneys will continue to serve the firm’s diverse array of clients in a wide variety of practice areas and industries, including corporate, construction, domestic relations, data security and privacy, employment, environmental, estate planning, health care, intellectual property, insurance/reinsurance, litigation, media and First Amendment, real estate, social media, nanotechnology, renewable energy, telecommunications, and copyright, trademark and intellectual property.

Prince Lobel Managing Partner Craig M. Tateronis stressed that the firm will retain the value, quality and efficiency its clients have come to expect. “Our new location will only enhance client service and the firm’s commitment to being an active member of its community,” said Tateronis. “Our space has always been a vital connection point with our clients, employees and visitors. Especially now, with law firm space design rapidly evolving, we are excited to design a new home that is on the cutting edge of innovation within our profession and reflects the unique energy and culture of our firm.”

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Unwanted Plaque(s): Are Plaque Companies Misappropriating Your Copyrighted Material?

Congratulations!  Your publication has just run a successful awards program honoring local businesses.  Advertising dollars are rolling in, and your readers are engaged.

Then the phone calls come.

Award winners are complaining about the $250.00 bill that accompanied the award plaque from your company. Only problem – you didn’t send the plaque or the invoice.

Our media clients have called us with the same issue before and it’s an unfortunate reoccurrence.  In an attempt to maximize profit, plaque companies reuse and redistribute portions of your publication by either ripping pages and placing the work on a plaque, or digitally reproducing your content without your permission.  So what can you do?

Case-law sends mixed signals, but a 2013 decision from a federal Court of Appeals gives publishers arguments to help stop the plaque-makers.

The Plaque Business Legal Theory

For years, plaque companies have defended claims of infringement under what is called the “first sale” doctrine of copyright law.  For years, this defense has proved difficult, and expensive, to counter.

The first sale doctrine is codified at 17 U.S.C. §109(a) which provides:

Notwithstanding the provisions of Section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

For example, if an artist sells a postcard, the purchaser of the postcard can re-sell the postcard without artist permission, even though the copyright law grants authors of copyrighted works the exclusive right to distribute their own work.

 When pressed, the plaque companies rely on one court decision in the Ninth Circuit.  In the case of Lee v. A.R.T. Company , an artist alleged copyright infringement against a postcard company when the company purchased postcards and mounted the cards on decorative tiles.  The Ninth Circuit agreed with the postcard company that such action was not copyright infringement.  Lee v. A.R.T. Company , 125 F.3d 580 (1997).  The plaintiff alleged that the bonding of the art onto the ceramic tiles was a violation of the copyright holder’s exclusive right to create derivative works, and thus, falls outside of the “first sale” doctrine exemption.

Specifically, under 17 U.S.C. §101, a “derivative work” is defined as:

…a work based on one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound records, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed or adapted.  A work consisting of editorial revisions, annotations, elaborations or other modifications which, as a whole, represent an original work of authorship, is a derivative work.

The lower court in Lee had determined that simply applying an epoxy resin to bond the art to the tile does not create a derivative work, any more than re-framing a painting would create a derivative work.  Essentially, the lower court found that the mounting process cannot create a derivative work because the change of the work “as a whole” is not sufficiently original to support a copyright.[1]  Lee disagreed and claimed the mounting created an original and distinct derivative work.

The Court of Appeals chose not to engage in this originality discussion. Rather, the court focused on whether or not the mounted work was derivative as either an art reproduction or as a work that has been recast or adapted.   The court focused on the extent to which the original work was transformed. Citing examples such as the framing of a work, the court reasoned that the works of art were not transformed in the slightest by simply being mounted onto the tile.  The court said that adopting the plaintiff’s position may make simple tourists and art collectors criminals if they chose to frame or otherwise mount original pieces of art that they had purchased.

Attacking the First Sale Argument

Until 2013, attacking the “first sale” doctrine proved difficult with little to no persuasive judicial opinions to debunk the “first sale” defense.  In fact only one case in the country supported the idea that mounting original pieces of art may violate the copyright holder’s rights to create derivative works.  See Mirage Editions, Inc. v. Albuquerque A.R.T. Co., 856 F.2d 1341 (1988).

In the Mirage case, images were removed from a book and then printed onto ceramic tiles. According to the court, by removing the individual images from the purchased book and placing them on tiles, the defendant has transformed the images by incorporating them into the tile-preparing process.  The Mirage court stated:

We recognize that, under the “first sale” doctrine as enunciated at §17 U.S.C. 109(a)… appellant can purchase a copy of [a copyrighted work] and subsequently alienate its ownership in that book. However, the right to transfer applies only to the particular copy of the book which appellant has purchased and nothing else. The mere sale of the book to the appellant without a specific transfer by the copyright holder of its exclusive right to prepare derivative works, does not transfer that right to appellant. The derivative works right, remains unimpaired and with the copyright proprietors… As we have previously concluded that appellant’s tile-preparing process results in derivative works and as the exclusive right to prepare derivative works belongs to the copyright holder, the “first sale” doctrine does not bar the appellees’ copyright infringement claims

Adding strength to the Mirage court theory, on July 24, 2013, a decision in the Fourth Circuit appeared to breathe new life into the theory that a derivative work is created by mounting copyrighted material onto plaques and that the “first sale” doctrine is an inadequate defense.  See Rosebud Entertainment LLC v. Professional Laminating, LLC, 958 F.Supp.2d 600 (2013).  In a fact pattern that closely resembles the actions of most plaque companies today, Rosebud Entertainment (“Rosebud”), a magazine publisher, claims that the defendant, Professional Laminating LLC (“PLL”), was taking covers of Baltimore magazine’s “Top Doctors” edition and mounts the covers onto plaques to sell to the doctor awardees.  PLL countered with the usual defense of the “first sale doctrine” and a “fair use” defense.

PLL’s “first sale” argument is similar in nature to that made in the Lee case: the plaques are not independent works of art, but rather consist of the exact work placed on a different background, and thus have not been transformed in a material fashion.  PLL argues that they simply re-sold the copies of the works.  Rosebud counters by asserting that PLL transformed “…a magazine into a commemorative product through tearing, laminating and framing of the magazine’s cover onto a plaque inscribed with a recognition of the doctor featured in the magazine.”

In deciding the first sale issue, the Rosebud Court explicitly acknowledges the existence of the Lee decision and another similar 11th circuit decision,  Allison v. Vintage Sports Plaques, 136 F.3d 1443 (11th Cir. 1998) (holding that a defendant may purchase trading cards and then frame the cards by mounting them between transparent acrylic sheet and wooden board).  The court, however, is not persuaded by such decisions.  The court distinguishes with such holdings as follows:

Here, unlike in Allison and Lee, the Defendants have done more than add surrounding materials to Rosebud’s Works; instead, they significantly altered the Works by physically separating the magazine covers from the magazines and cutting the cover pages to fit the wooden boards… Because of these alterations to the original Works, the first sale doctrine does not apply to any of the Defendants’ products—including those that contained original pages.

As a result, the court specifically precluded the defendant from raising the “first sale” defense at trial, providing a new weapon to attack the plaque companies’ theory.

The one caveat, however, is as follows: the Rosebud court left open the question, for trial, as to whether or not the use by PLL is to be considered a “fair use.”  The court completed a preliminary analysis of the four prongs of a fair use defense as follows:

  1. Purpose and Character – weighs against a fair use finding (commercial purpose of use by the defendant).
  2. Nature of Work – the need to disseminate factual works weighs in favor of a finding of fair use. The Rosebud court suggested that the material was a mix of factual and creative content, however, it seems closer to factual.    The combination of educational and factual components of the work along with the fact that the works were published weigh in favor of a fair use finding.
  3. Amount of Work Used – the court found that the use of just covers and small pieces of the magazine would weigh in favor of fair use. This reasoning is troubling as the court seems to take a quantitative approach rather than a qualitative approach as to the “amount” of the work used, which is not the correct approach.  The cover and the material that accompanies the “Top Doctors” magazine may go to the “heart” of the feature, no matter the quantity of the material taken.
  4. Effect on the Market – the court made no conclusion on this issue.

Whether the “fair use” defense will ultimately be the argument to replace the “first sale” argument by plaque companies remains to be seen.  The good news, however, is that the courts are finally debunking the “first sale” defense that plaque companies have grown to love – which will aid publishers to combat unwanted solicitations of its advertisers and consumers.

If you would like assistance need more information about  please contact the author of this alert, Peter J. Caruso II, at 617 456 8034 or pcaruso@PrinceLobel.com.

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Rob Bertsche Answers NENPA’s Media Law Hotline “Question of the Week” on the Publication of Drone Photos

Question: A drone hobbyist submitted to our paper several photographs of town landmarks, taken from his drone. Can we publish them? Can we pay the hobbyist for them? Can we assign the hobbyist to take additional photos, whether of landmarks or of breaking news events such as fires and motor vehicle accidents?

Short answers: You can publish the photos, and you can compensate the hobbyist for the photos so long as you did not commission them. But if you engage the hobbyist as the equivalent of a freelance photographer on assignment, paid or not, you risk getting a nasty letter from the Federal Aviation Administration.

Click here to read Rob’s complete answer.

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.

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Summertime and the Living is Easy Unless You Operate a Long-Term Care Facility

Summertime and the Living is Easy Unless You Operate a Long-Term Care Facility

After nearly 24 years without any major revisions, last week the Centers for Medicare and Medicaid Services (CMS) proposed major revisions to the Medicare-Medicaid Conditions of Participation governing long-term care facilities to reflect advances made to delivering long-term care over the last several years.  Many of the proposals are designed to implement requirements of the Patient Protection and Affordable Care Act of 2010, as amended by the Health Care and Education Reconciliation Act of 2010.  If the proposed revisions are adopted, long-term care facilities will need to revise a long list of policies and procedures and develop and implement a number of new policies and procedures and programs.  CMS estimates that the total projected cost for long-term care facilities to comply with the proposed revisions will be $729,495,614 in the first year and $638,386,760 in the second year.

New Proposals
The new proposals include but are not limited to:
  • Open visitation to allow residents to have visitors of their choice at the time of their choice, subject to any clinically necessary or reasonable restriction or limitation or any safety restriction or limitation.
  • Alternative suitable and nourishing meals and snacks for residents who want to eat at non-traditional times or outside of scheduled meal times.
  • The right of a resident to share a room with his/her roommate of choice if the residents live in the same facility, consent to the arrangement, and the facility is able to reasonably accommodate the arrangement.
  • Comprehensive Person-Centered Care Planning with a baseline care plan established within 48 hours of a resident’s admission to the facility.
  • The provision of behavioral health services to residents with mental and psychosocial illnesses or substance abuse disorders, in accordance with their comprehensive assessments and plans of care, with appropriate staffing to provide the services, including social workers.
  • The establishment of a facility policy regarding the use and storage of foods brought to residents by family and other visitors.
  • The development, implementation, and maintenance of a Quality Assurance and Performance Improvement Program that focuses on systems of care, outcomes of care, and quality of life.
  • The establishment of an Infection Prevention and Control Program to prevent, identify, report, investigate, and control infections and communicable diseases for residents, staff, volunteers, visitors, and other individuals providing services under an arrangement, and the designation of an Infection Prevention and Control Officer to serve on the facility’s Quality Assessment and Assurance Committee.
  • The establishment of policies regarding smoking which address tobacco cessation, smoking areas, and safety, consistent with state and federal law.
  • The development, implementation, and maintenance of a Compliance and Ethics Program with policies and procedures to reduce criminal, civil, and administrative violations.
  • An annual facility wide assessment of a number of factors such as, size, location, and number of residents; resident population, including types of diseases, conditions, and overall acuity; competencies and knowledge of employed and contracted staff, managers, and volunteers; contracts, memoranda of understanding, and other agreements with third parties to provide services or equipment during normal operations and emergencies.
  • Conditions that must be met before a facility enters into a binding arbitration agreement with a resident and provisions which must be included in a binding arbitration agreement, including but not limited to, explaining the agreement to the resident, not making admission to the facility contingent on signing the agreement, and not prohibiting or discouraging a resident from communicating with federal, state, or local health care or health-related officials.
  • New health and safety standards applicable to facilities that provide outpatient rehabilitative services.
Proposed Revisions to Existing Requirements 
In addition, there are a number of proposed revisions to existing requirements, including but  not limited to:
  • Written policies and procedures to prohibit and prevent abuse, neglect, and mistreatment of residents or misappropriation of their property or exploitation.
  • A prohibition on hiring an individual who has had disciplinary action taken against his/her professional license by a state licensing authority due to a finding of abuse, neglect, or mistreatment of a resident or misappropriation of a resident’s property.
  • Expansion of the Interdisciplinary Care Team’s composition to include a nurse’s aide, a member of food and nutrition services, and a social worker.
  • A written explanation if participation of a resident or the resident’s representative on the Interdisciplinary Care Team meetings is not practicable.
  • Upon a resident’s transfer or discharge, documentation of the history of the present illness, the reason for the transfer or discharge, and the past medical/surgical history.
  • An in-person evaluation by a physician, physician assistant, nurse practitioner, or clinical nurse specialist before an unscheduled transfer of a resident, except in an emergency.
  • Accounting for quality, resource use, other measures, treatment preferences, and goals of care in discharge planning.
  • A summary of arrangements for follow-up care and post-discharge medical and non-medical services in the resident’s discharge plan.
  • Physician delegation of dietary orders to dietitians and therapy orders to therapists if  consistent with their scope of practice under state law.
  • Pharmacist review of a resident’s medical chart at least every 6 months, when a resident is new to the facility, when a prior resident returns to or is transferred to the facility, and during each monthly drug regimen review if a resident is on a psychotropic drug, antibiotic, or any other drug the Quality Assessment and Assurance Committee has requested be included in the monthly drug review.
  • Pharmacist documentation of any irregularities identified during the drug regimen review  in a written report provided to the attending physician, facility medical director, and director of nursing.  Attending physician documentation in the resident’s medical record that he/she has reviewed the identified irregularity, and what action, if any, has been taken to address it.
  • Restrictions on the administration of psychotropic drugs, including but not limited to, limiting PRN (as needed) orders to 48 hours and refraining from renewals unless a resident’s physician reviews the need for the medication prior to the renewal and documents the rationale for the renewal in the resident’s clinical record.
  • The implementation of training programs on communication, resident rights and facility requirements, abuse, neglect, and exploitation, Quality Assurance and Performance Improvement and Infection Control, Compliance and Ethics, in-service training for nurse aides on dementia management and resident abuse prevention, and behavioral health training for the entire staff.

Comments on the proposed rule are due by 5 p.m. on September 14, 2015.

-Rochelle

Zapol

If you have any questions concerning the proposed revisions to the Medicare-Medicaid Conditions of Participation governing long-term care facilities or would like assistance in submitting comments to CMS on the proposal, please contact Rochelle H. Zapol, a partner in Prince Lobel’s Health Care Practice and the author of this alert. You can reach Rochelle at 617 456 8036 or rzapol@PrinceLobel.com.

Ban the Box Movement Gaining Strides

Almost one in three adults in the United States has a criminal record that will show up on a routine criminal background check. Given the proliferation of employment background checks—9 out of 10 employers now conduct criminal background checks for employment —millions of workers with records are finding it increasingly difficult to compete for jobs.  According to a recent New York Times/CBS News poll, having a criminal record contributes to high levels of unemployment among prime-age working men—34 percent of unemployed men ages 25 to 54 have been convicted of a crime.[1] A growing concern in some quarters that background checks are being used to not only exclude applicants with a criminal record, but also to systematically eliminate applicants from the hiring process based on race and national origin, has fueled a national “Fair Chance to Work” movement.[2] As a result, “Fair Chance” hiring policies have rapidly taken hold in states and localities across the United States.

Fair chance hiring refers to a set of hiring policies designed to ensure that applicants with criminal records are evaluated on the merits of their qualifications, not just on their criminal records. The rationale behind the campaign is that if employers ask on the initial job application about criminal history, millions of workers may be eliminated even if they might be qualified for the jobs. The movement is also referred to as “Ban the Box.” It is so named after the checkbox on applications asking about a job applicant’s criminal background.

The movement was started ten years ago by a San Francisco-based organizing group, All or None of Us (“AOUON”), made of up previously incarcerated individuals. In 2005, AOUON successfully petitioned the San Francisco Board of Supervisors to adopt a resolution to remove the conviction history question from public-sector job applications. In 2006, the City and County of San Francisco adopted the policy. In less than 10 years since the movement was first launched, the number of jurisdictions adopting fair chance hiring has surpassed 100, including 16 states, the District of Columbia and nearly 100 cities and counties.

MASSACHUSETTS

On August 6, 2010, Governor Deval Patrick signed into law “An Act Reforming the Administrative Procedures Relative to Criminal Offender Record Information and Pre- and Post-Trial Supervised Release,” S. Rep. No. 186-2583 (Mass. 2010) (Conf. Rep.). This law was the second in the nation to codify the so-called “ban the box” provision, which prohibits public and private employers with more than six employees from asking about an applicant’s criminal offender record information (“CORI”) on an initial written application form.[3]

NATIONWIDE

In the last few years, the list of jurisdictions with similar laws has rapidly expanded. As of April 2015, seventeen states, including Massachusetts and the District of Columbia have adopted some form of ban-the-box legislation, although the details vary. Fifteen states (California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New Mexico, Rhode Island and Virginia) and the District of Columbia have adopted legislation limiting a public employer’s ability to make inquiries regarding an applicant’s criminal background at the application stage. Of these states, six (Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Rhode Island) and the District of Columbia impose the prohibition on private employers, which advocates embrace as the next step in the evolution of these policies. In addition, nearly 100 jurisdictions nationwide have enacted similar legislation making it unlawful for state, city, county or other local agencies to inquire about an applicant’s criminal history on employment applications. At least twenty-five cities and counties now extend “ban the box” laws to private employers. The majority of these laws have been enacted within the last three years.

Private employers can expect additional cities and states to adopt “ban the box” legislation that reaches into the private sector and they should remain aware of the growing movement for “ban the box” legislation in cities and states in which they do business.

EEOC GUIDANCE ON CRIMINAL HISTORY

There is no federal ban-the box legislation. However, in 2012, the Equal Employment Opportunity Commission (“EEOC”) endorsed removing the conviction question from job applications as a best practice, making clear its position that federal civil rights laws regulate employment decisions based on arrests and convictions if those decisions implicate the antidiscrimination laws the EEOC enforces. The Antidiscrimination provisions of one of those laws, Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., could be violated in one of two ways by an employer.

First, studies have shown that employers may treat whites with a criminal record more favorably than similarly-situated minority applicants with the same or similar criminal record.[5] Treating individuals differently in the employment context (i.e. disparate treatment) is prohibited by Title VII.[6]   Second, racial and ethnic disparities in the criminal justice system can cause many more minorities to be automatically eliminated from consideration for jobs at the initial stage of the process than whites (i.e., “disparate impact”). This disparate impact of the criminal background check process on minorities can occur because minorities are arrested and convicted at a much higher rate than whites, and are statistically more likely to have a criminal record. Similarly, disparate impact is also a form of discrimination that is made unlawful by Title VII.[7]

As the federal agency that enforces Title VII, the EEOC has issued guidance on the use of arrest and conviction records in employment decisions. The EEOC’s Guidance advises employers relying on criminal history in making employment decisions to consider the following factors:

  • The nature and gravity of the offense or conduct;
  • The time that has passed since the offense, conduct and/or completion of the sentence; and
  • The nature of the job held or sought.

The Guidance further underscores the importance of an “individualized assessment” prior to excluding an applicant based on a criminal record, but also refers to permitting exclusions involving specific criminal conduct (i.e. “targeted exclusions”) that are “narrowly tailored to identify criminal conduct with a demonstrably tight nexus to the position in question.”)

MOVING FORWARD

Based on the growing momentum for “ban the box” legislation, employers should reevaluate their pre-employment and hiring practices. In particular, employers should review employment applications to ensure that all questions comply with local and state law. Employers should also ensure that all hiring and recruiting personnel are aware of “ban the box” laws and review all internal Human Resource policies. “Ban the box” legislation is likely to continue expanding in 2015. As a result, private employers that are not currently subject to such legislation should consider reviewing and revising their employment applications and should keep abreast of proposed “ban the box” legislation that may apply to them. Employers with questions regarding “ban the box” should consult with counsel.

[1] See Binyamin Appelbaum, Out of Trouble, but Criminal Records Keep Men Out of Work, N.Y. Times, February 28, 2015, at 2

[2]See note 5, below.

[3] Many of “ban the box” laws in other cities and states similarly apply only to employers of a certain size (for example, in New Jersey and Illinois, the law applies to those employers with 10 or more employees). By using the term “initial written application,” the law only prevents applicants from being automatically disqualified for employment because of a criminal record at the first stage of the application process. Employers may still question applicants about felonies and certain misdemeanor convictions at later stages of the process, such as during in-person interviews or on subsequent forms and/or applications. The law gives ex-offenders the opportunity to make it further along in the hiring process and to explain their criminal records in person. See M.G.L. c. 151B, § (4)(9½).[1] Importantly, the ban-the-box provision does not place any limits on employers’ decision-making power. Employers are free to make their own determination that an applicant’s criminal record makes him or her unsuitable for employment. The only condition imposed by M.G.L. c 151B(4)(9½) is that the applicant be given a chance to discuss the criminal record—both its accuracy and relevance to the job in question—before the employer makes the hiring decision.

[4]Employers are free to determine if or when it will inquire about criminal history, with one state agency, the Executive Office of Health and Human Services’ (“EOHHS”), asking whether an applicant has a criminal record only after the candidate has been given a conditional offer of employment. See 101 C.M.R. § 15.06(1)(A).

[5] See OFCCP Directive 306, “Complying with Nondiscrimination Provisions: Criminal Record Restrictions and Discrimination Based on Race and National Origin” (Jan. 29, 2013).

[6] See also 19 C.F.R. § 1607.11 (“Disparate treatment occurs where members of a race, sex, or ethnic group have been denied the same employment, promotion, membership, or other employment opportunities as have been available to other employees or applicants.”)

[7]] Disparate impact occurs when an employment practice that is facially neutral in its treatment of different groups has harsher consequences on one group than another. Griggs v. Duke Power Co., 401 U.S. 424, 430 (1971) (“practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices”).  Criminal background checks have a much more pronounced impact on the minority population in the United States than it does on the white population because the former has an exponentially higher arrest and conviction rate than the latter. For example, according to FBI statistics, African Americans accounted for more than three million arrests in 2009 (28.3% of total arrests), even though they represented only about 13% of the total population in the past decade. Conversely, whites, who made up approximately 72% of the population in the last decade accounted for fewer than 7.4 million arrests (69.1% of total arrests). See Johnathan J. Smith, Banning the Box but Keeping the Discrimination?: Disparate Impact and Employers’ Overreliance on Criminal Background Checks, 49 Harv. C.R.-C.L. L. Rev. 197, 199 (2014). There is a real concern that racial profiling and other disparities in the criminal justice system are the cause for the higher numbers – not that racial minorities have a higher propensity for crime. The automatic disqualification of racial minorities from the hiring process at its initial stage because of a criminal record might support claims of disparate impact in violation of Title VII.

If you have any questions about the information presented here, need assistance with reviewing and updating policies, or would like to learn more about how Prince Lobel can address any of your employment law concerns, please contact Julie B. Heinzelman at 617 456 8088 or jheinzelman@PrinceLobel.com  and Joseph Edwards at 617 456 8131 or jedwards@PrinceLobel.com, the authors of this Alert or click here to contact any of the attorneys in the firm’s Employment Law Practice Group. 

Boston’s Imagination at its Finest

City skyline detailed silhouette. Vector illustration

Imagine a Boston where public engagement is encouraged.  Imagine a Boston where a vision for the City is created and then guides expansion and development. This is exactly what Boston’s Mayor Martin Walsh has proposed with the launch of “Imagine Boston 2030.” Imagine Boston 2030 is the City’s first comprehensive planning initiative in 50 years.  It is aimed at fostering collaboration among all stakeholders in the development of transportation and housing, while promoting the arts, preserving the environment and growing the City’s economic base.  It promises to be a pioneering opportunity to create a progressive movement within the City.

Imagine Boston 2030 could have a tremendous impact on residents and developers alike. Currently, the process that developers undertake to receive permits for zoning is prolonged, unpredictable and cumbersome. With Mayor Walsh’s initiative, the Boston Redevelopment Authority (BRA) will have more latitude to assess the needs of developers and residents which should  expedite development in underserved and underutilized neighborhoods. The team facilitating this process hopes to put an emphasis on neighborhoods that have the potential to adjust well to transit-oriented expansion.  Special priority will be given to economically disadvantaged residents, non-English speaking individuals, and youth to voice their opinions and ideas in public assemblies.

Zoning within Boston is a huge matter of concern for developers. Neighborhoods that are in need of a facelift will greatly benefit from the proposal as developers will be eligible to receive permits by right to assist in the construction of modern buildings to promote business and economic growth. Much of the city’s current redevelopment plan has been placed in the Downtown Boston area with the rapid construction of Millennium Tower and new retail and business spaces within its radius. Imagine Boston 2030 will focus on areas that are in need of renewal such as Allston’s Beacon rail yards and Forest Hill’s Eggleston Corridor.

As part of the initial phase of the six-stage process, Mayor Walsh announced a Request for Proposals (RFP) which outlines an approach for consulting services to assist in what is the first citywide plan in fifty years.  The RFP seeks a team composed of a lead consultant partnered with public outreach and communications services.  An extensive background in public engagements, outreach, and planning of citywide projects is needed to qualify for a spot on Mayor Walsh’s team. All responses are due by July 20, 2015.

Bostonians are currently being asked to visit the plan’s website to fill out a survey to target specific areas of concern.  Although the final plan is not expected to be implemented until Summer, 2017, Mayor Walsh believes that this new level of engagement and collaboration between residents, developers, businesses and organizations will create a thriving and groundbreaking city that surpasses each milestone of real estate development, economic prosperity and social growth.

– Craig Tateronis

Craig Tateronis

If you have any questions about zoning, permitting, or any other real estate law matters, please contact Craig Tateronis, a Managing Partner of Prince Lobel Tye and the author of this alert, at 617 456 8021 or ctateronis@PrinceLobel.comor click here to contact any of the attorneys in the firm’s Real Estate Law practice group. 

FTC updates endorsement FAQs, focuses on social media

The Federal Trade Commission, the government agency in charge of protecting consumers from deceptive and false advertising, published a set of Endorsement and Testimonial Guides in 2009. These Guides help advertisers understand the best ways to follow the law of the use of endorsements in advertising, and the proper way to disclose endorsers’ connections to advertisers to the public (see the Federal Trade Commission Act, Section 5).

While the Guides provided a number of hypothetical examples of how the law should be applied, (you can read those here), those examples only reflected social media scenarios as they were likely to exist in early mainstream social media.

Last week, the FTC published an updated “What People Are Asking” FAQ-type page that complements the Guides and provides a number of 2015-relevant scenarios under which disclosures should be made, and what they should look like.

An endorsement is an advertising message made on behalf of a sponsoring advertiser.  The endorsement must be honest, and the endorser must have actually used the product or service that s/he is endorsing.  If the writer of an endorsement has received something of value – cash, free product, free service, entrance into a sweepstakes, etc. – for making that endorsement, s/he must disclose that fact to the public.

It’s a matter of consumer protection from advertiser deception.  Consumers should feel comfortable that the endorsement is based on the endorser’s actual experience with the product or service. Consumers also have the right to know whether the endorser received something of value in exchange for the endorsement in order to determine for themselves what weight and credibility to give to the endorsement.

If a “significant minority” of consumers don’t understand the “material connection” between the endorser and the advertiser, a disclosure is required.  “Significant minority” is a pretty low bar, so the FTC suggests that when in doubt, it is better to disclose.

If you are a blogger or other digital influencer who is publishing content sponsored by a brand on your blog, on YouTube, or through any of your social media handles, you are an endorser, and this applies to you.  If you are a company engaging the endorser, you are the advertiser, and are obligated to ensure that the endorser follows the Guides, so this applies to you, too.

And in case you were wondering why these requirements aren’t trumped by free speech rights, it is because endorsements are typically commercial speech, which can be lawfully regulated by the FTC.

The following is an overview of what’s new from the FTC on this topic, along with some points reiterated or clarified from the original Guides.  I encourage you to read the full “What People Are Asking” at ftc.gov.

When and where do you need to make a disclosure?

Here’s the simple rule again:  A disclosure is required when an endorsement is made on behalf of a sponsoring advertiser.  There is no special wording required by the FTC to effectively make this disclosure.  “This post is sponsored by Company MNOP” or “Company RST gave me this product to try” will suffice.  The latter comes directly from the FTC.

A blanket disclosure somewhere on your website, like “Sometimes I write about products I receive from brands” in an “About” page or under “FAQs” is not sufficient.  The disclosure must be “clear and conspicuous.” That means it must be near the endorsement, in prominent font, not buried in text. (You can learn more about making effective disclosures here).

If the endorser writes about the product or service more than once, s/he should make the disclosure each time, because the reader of a blog post about Product Q in June might not have read April’s post about Product Q that contained the disclosure.

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