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CMCP Diversity Matters Spring 2015 Newsletter

MINORITY

Spring 2015 1


CMCP Diversity Matters

2015 eNewsletter Committee Members

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Tambry L. Bradford (Co-Chair) Special Counsel Pepper Hamilton LLP

Cassandra Mougin (Co-Chair) Shareholder Pettit Kohn Ingrassia & Lutz, PC

Michael Chung Of Counsel Willenken Wilson Loh & Delgado LLP

Karen A. Henry Counsel Davis Wright Tremaine LLP

Noah PĂŠrez-Silverman Associate Caldwell Leslie & Proctor, PC

Kelly Perigoe Associate Caldwell Leslie & Proctor, PC

David Shimkin Member Cozen O’Connor

Jonathan Turner Partner Epstein Turner Weiss


Spring 2015 Newsletter

Table of Contents page 3

Meet Your New CMCP Board Members – Spotlight Series Mary Michelena Monroe

page 5

California’s Anti-Bullying Statute – What is the Effect of Non-Compliance?

page 7

Business Development Series: Simply Taking Action will Build Your Confidence

page 9

Baby Steps after Concepcion: Developments on the availability of class wide arbitration

page 11

Attorney Spotlight: Carmen Cole

page 13

Congrats CMCP Members on the San Diego Super Lawyers and Rising Stars 2015

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DISHing it out with the Fox: How the Second Screen has Survived Fox’s Copyright Attacks

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Upcoming Diversity Event: Burnham Brown’s 7th Annual Advancing Diversity Networking Reception

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CMCP Diversity Calendar Mark Your Calendars for Upcoming Diversity Events

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CMCP Diversity Matters

MEET YOUR NEW CMCP BOARD MEMBERS

ATTORNEY SPOTLIGHT ON

MARY MICHELENA MONROE – Shareholder, AlvaradoSmith, APC By: Karen A. Henry, Counsel, Davis Wright Tremaine LLP

Just as Nike uses the catch-phrase “Just Do It” to inspire consumers to physical excellence, Mary Michelena Monroe advises women lawyers and lawyers of color seeking success in law firm settings to “just say ‘yes.’” In fact, according to Mary, we should be the first to say “yes.”

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ary Michelena Monroe is one of five lawyers the California Minority Counsel Program recently welcomed to its Board of Directors, and she is exactly what I would expect of a CMCP Board Member – accomplished, intelligent, articulate, and philanthropic. She is a Shareholder at AlvaradoSmith, APC – California’s largest, California-based, minorityowned law firm – where she has built a thriving litigation practice. As a member of the firm’s Business, Commercial & Complex Litigation and Employment Counseling & Litigation Practice Groups, she represents and counsels clients on a broad variety of employment-related issues, ranging from hostile work environment to sexual, racial, age and ADA discrimination and harassment. Before earning her Juris Doctor from Loyola Law School, Mary was selected to compete on the International Moot Court Team and was awarded the American Jurisprudence Award for excellence in Trial Advocacy. She has served as a faculty member for the National Institute for Trial Advocacy and currently is a member of the State Bar Council on Access and Fairness. Mary is passionate about increasing diversity in the legal profession and is whole-heartedly committed to fulfilling CMCP’s mission. As a young associate, Mary observed that very few women advanced to partnership, and those who were invited into that 3

exclusive group, did not have families – a troubling trend suggesting that, for women, the cost of personal success would be family. Mary also recognized that, in many law firms, the partners in positions to dole out prime work assignments and to make careeradvancing client introductions are not women or attorneys of color, and these rainmakers tend to work with associates who look like them and with whom they share similar backgrounds (a phenomenon Mary attributes to human nature, more than anything). Mary candidly acknowledges that these realities create huge opportunity gaps for women lawyers and


Spring 2015 Newsletter

lawyers of color, many of whom ultimately leave law firms (or law practice), creating even greater gender and racial disparity in law offices. Lack of diversity, however, can negatively impact a law firm’s ability to deliver excellent client service, especially as it relates to employment litigation, Mary says. In the employment space in particular, lawyers must be able to effectively interact with men and women of varied races, cultures, and backgrounds, many of whom have never been involved in any type of litigation, let alone litigation that evokes the type of emotions that often arise in connection with employment-related disputes. Moreover, for trial lawyers, like Mary, the ability to relate to juries – inevitably comprised of men and women of many races and from all walks of life – can make the difference between securing a favorable verdict or not. So, while increasing diversity in the legal profession is a laudable social goal, Mary explains that increasing diversity also is fundamental to a firm’s ability to provide meaningful client service and to meet client expectations. In short, diversity is necessary for lasting success. Mary’s commitment to creating a more diverse legal landscape developed largely because of her membership in CMCP. Mary was introduced to CMCP when she began her tenure at AlvaradoSmith three years ago. In fact, soon after she joined AlvaradoSmith, Mary attended a CMCP event and was impressed, not only with the substantive programming, but also the networking opportunities. From that day, Mary was hooked, and over time she became increasingly involved in the organization, including serving as a member of CMCP’s 2013 Conference Committee and moderating a conference panel. When Marci Rubin announced that there were positions open on CMCP’s Board of Directors, Mary did not hesitate to apply, and her enthusiasm about her upcoming term as a member of the Board is downright palpable. What does Mary have planned? During her term, Mary will continue CMCP’s work of arming lawyers of color and women lawyers with the tools to help fill the opportunity gaps that often delay or prevent

such lawyers’ ascent to the partnership ranks. To achieve professional success in law firm environs requires fearlessness and initiative, Mary believes. Women and lawyers of color must unabashedly ask for opportunities. Mary acknowledges the value of mentors and sponsors who can guide and advance a legal career, but cautions women lawyers and lawyers of color not to give up the reins of their career development. At all times, we should be seeking and asking for the opportunities that will move our careers forward. Mary notes that many times women lawyers and lawyers of color may be aware of opportunities, but don’t ask for them. It’s the asking that makes the difference, Mary says, and we must be resilient when we ask and are told, “no.” Mary wants to ensure that CMCP’s plenary programming instills in its young members the courage to “ask for what they want.” She also wants to equip young CMCP members with effective networking skills, and to create opportunities for them to use those skills – often. Toward that aim, Mary is planning to encourage more CMCP events dedicated exclusively to informal “networking” – which Mary says really is creating, building, and nurturing lasting professional relationships. Finally, Mary believes CMCP can be instrumental in inspiring its members, especially young lawyers, to stretch beyond their comfort zones. Mary recalls a professor at Loyola who taught a trial advocacy class intended to prepare students to participate in a program sponsored by the District Attorney’s Office. His advice resonated with Mary and has enabled her to grow as a lawyer: “When the partner asks if you can do something, just say ‘yes,’ and then go figure out how to do it.” Building on this advice, Mary says that when opportunities arise for a woman lawyer or lawyer of color, he or she should not just say “yes, he or she should be the first one to say “yes.” Welcome to CMCP’s Board, Mary! We are lucky to have you! ■

Karen Henry is an attorney in Davis Wright Tremaine LLP’s Los Angeles office. She maintains a broad and diverse practice, focusing primarily on media, IP, and entertainment law. For more info about Karen, click here. 4


CMCP Diversity Matters

California’s Anti-Bullying Statute – What is the Effect of Non-Compliance? By: Jonathan M. Turner, Founding Partner, Epstein Turner Weiss

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y now, California employers should be aware of the “antibullying” law, which became effective on the first of this year. The statute is a compromise between employee rights groups seeking expansion of existing “harassment” laws and pro-business groups seeking to put the brakes on what they believe is an over-regulated business environment. Employee advocates for a stronger law include the Workplace Bullying Institute,1 a national organization whose goal is to get every state to adopt a uniform “anti-bullying” statute prohibiting employers from subjecting employees to abusive conduct in the workplace.2 So far California is the only state in the country that has passed legislation addressing workplace bullying. But it appears, at least for 5

the moment, that even this state’s lawmakers, who have a strong history of enacting legislation protecting workers, agree there should be limits to what government can and should do to regulate workplace conduct. California’s anti-bullying law actually does not prohibit workplace bullying. It merely requires that employers provide periodic training and education for their supervisors regarding abusive conduct. The anti-bullying law was passed in the form of an amendment to an existing workplace training and education provision in the California Fair Employment and Housing Act (“FEHA”). Prior to the amendment, FEHA mandated that employers with fifty or more employees provide at least two hours of sexual harassment training and education to all supervisory employees, and

thereafter provide such training and education every two years. See Cal.Govt.Code section 12950.1.3 The new law now requires that employers expand this training and education to “also include prevention of abusive conduct.” Cal.Govt.Code section 12951.1(b). “Abusive conduct” is defined in the new law as “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.” It may include “repeated infliction of verbal abuse, such as the use of derogatory remarks, insults and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.” Cal.Govt.Code section 12950.1(g)(2).


Spring 2015 Newsletter

With the passage of the new law, attorneys inevitably will face the question of what happens if one of their clients fails to timely implement the anti-bullying training and education requirements? Or what happens if a claim is made that the training and education that was administered fails to meet minimum professional standards or was otherwise deficient? A legitimate argument can be made that while FEHA’s sexual harassment training and education provision contains minimum requirements, both in terms of content and the qualifications of the trainers and educators,4 no such requirements exist for the “abusive conduct” training and education provision. Employment lawyers representing workers undoubtedly will disagree with this limiting interpretation of the amendment. They instead will argue that because the

amendment expressly states that employers “shall also include prevention of abusive conduct as a component of the training and education,” the amendment clearly demonstrates a legislative intent to require employers to provide the same quality of workplace training and education for both topics.5

that the training and education requirements “did not reach a particular individual or individuals shall not in and of itself result in any action alleging sexual harassment.”7 The amendment adding abusive conduct as a required subject of training and education did not change either of these provisions.

Even if this pro-worker interpretation is correct, an employer’s failure to comply with the new training and education requirements does not appear to give rise to an independent cause of action by or on behalf of an affected employee. Before the amendment, FEHA provided that if an employer violated the sexual harassment education and training mandate, the remedy was for the Department of Fair Employment and Housing (and not affected employees) to seek an order requiring compliance.6 FEHA also provided that a claim

Although there are a few published cases that address claims that an employer has not taken “all reasonable steps necessary to prevent discrimination and harassment” under FEHA,8 there is little case law providing direct guidance on FEHA’s training and harassment provisions. Hence, employment law practitioners will be closely watching how courts will interpret the new anti-bullying requirements. ■

Jonathan M. Turner is founding partner at Epstein Turner Weiss in Los Angeles. Jonathan represents management in all aspects of labor and employment law. For more info about Jonathan, click here.

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The website for Workplace Bullying Institute is located at http://www.workplacebullying.org/

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See website pages for “Healthy Workplace Bill” at http://www.healthyworkplacebill.org/

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FEHA’s statutory provisions are found in California Government Code sections 12940, et seq.

FEHA section 12951.1(a) provides, among other things, that “[t]he training and education required …shall include information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment and the remedies available to victims of sexual harassment in employment[,]” and “shall also include practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation, and shall be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.” 4

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See Cal.Govt.Code section 12950.1(b).

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Cal.Govt.Code section 12950.1(e).

Cal.Govt.Code section 12950.1(d). This same provision also states that “[c]onversely, an employer’s compliance with [the training and education requirements] does not insulate the employer from liability for sexual harassment of any current or former employer or applicant.” 7

See Dickson v. Burke Williams, Inc. (March 6, 2015) __Cal.App.4th __ (discussing Cal.Govt.Code section 12940(k), which provides for a separate right of action against an employer who fails to take “all reasonable steps necessary to prevent” discrimination or harassment, but requiring first that the employee establish an underlying violation of rights and injury under FEHA.) 8

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CMCP Diversity Matters

Business Development Series Simply Taking Action Will Build Your Confidence By: Martha Sullivan, Principal, Thornton Marketing

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n attorney I’ve known for many years asked me to create a workshop on confidence. She recommended that I read “The Confidence Code” by Katty Kay and Claire Shipman. Although the book was written specifically for women, I found that much of the information and advice applies to many of the lawyers I have coached, particularly relating to their engagement in business development. While my clients are highly competent at practicing law, they tend to feel less confident about their abilities to build a book of business. Many of them 7

know what they should be doing to acquire new clients, but the lack of confidence prevents them from taking action. It turns out that action is an important component of confidence. In fact, one of the messages that is repeated throughout “The Confidence Code” is that “Confidence…is about action. It also takes repeated attempts, calculated risk taking, and changes to the way you think.” In discussing the work of psychologist Zach Estes, Kay and Shipman said his studies show that “the natural result of under-confidence is inaction…

when we hesitate because we aren’t sure…we hold ourselves back…fear of failure led to inaction, thus guaranteeing failure.” As with so many things in life, one of the “tricks” of biz dev is simply to take action. When you take action, you will create more confidence for yourself. When you attend a networking event, you create an opportunity to make a new connection. When you make the follow-up phone call or send the follow-up email, you give yourself a chance to develop a relationship. When you agree to speak at an industry conference, you demonstrate your expertise


Spring 2015 Newsletter

and increase your visibility to potential clients. Each action gives you more confidence, and the more practice you have, the more skillful you become. I often talk about developing the habit of engaging in biz dev. Like all good habits, it can be difficult or challenging at the beginning, but with repeated effort, you become more sure of yourself. Not surprisingly, that competence also makes you feel more confident. Each success encourages you to take further action. Then an important shift takes place, according to Nansook Park, a

leading expert on optimism and a professor at the University of Michigan. “Optimism is the sense that everything will work out,” she says. “Confidence is, I can make this thing work.” It might surprise you to learn that one of the things that may keep you from taking action is perfectionism. Martial artist Bruce Lee, who seemed to have super human abilities and was able to move in seemingly impossible ways, had this to say: “…if you are cursed with perfectionism, then you’re absolutely sunk. This ideal is a yardstick which

always gives you the opportunity to browbeat yourself, to berate yourself and others. Since this is an impossibility, you can never live up to it…It hides under the mask of ‘self-improvement.’ It never works.” Although he reached a level of perfection that few martial artists achieve, it is clear that he continually took action. By attempting impossible moves and taking risks, he became more confident about his ability.

Moving From Inaction to Action The only certainty in life is change, so even though you can’t predict the immediate outcome of your business development efforts, it’s important to take action. Here are a few simple suggestions. •

Contact one potential client about scheduling lunch.

Complete an RFP even if you aren’t sure you will land that client. If you don’t submit the RFP, I can guarantee that you won’t get the work.

If you have joined an association, attend the next program.

Take a few minutes to send LinkedIn invitations to people who should be part of your network.

If you have committed to following up with any client, potential client or referral source, send those emails or make those calls today (especially if you made the commitment weeks ago).

Experiment with the suggestions above. Notice what happens. You just might experience a feeling of confidence.

Martha Sullivan is Principal of Thornton Marketing in San Rafael, CA. marthasullivan@earthlink.net; 415.472.7126; www.thorntonmarketing.com

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CMCP Diversity Matters

Baby Steps after Concepcion: The development on federal and California law on the availability of class wide arbitration By: Lennette W. Lee, Attorney, Caldwell Leslie & Proctor, PC

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our years ago, the United States Supreme Court’s ruling in AT&T Mobility LLC v. Concepcion altered the landscape of class action litigation. Putative class plaintiffs Vincent and Liza Concepcion filed a suit against their cellphone service provider, AT&T Mobility. AT&T Mobility then moved to compel arbitration based on the service contract’s requirement that all disputes be arbitrated and that all claims be brought in the parties’ individual capacity, not in a class or representative proceeding. The Concepcions argued that the arbitration agreement— specifically, the class waiver—was unconscionable under California law. The district court agreed with the Concepcions, and the Ninth Circuit affirmed. The Supreme Court, however, reversed the Ninth Circuit’s ruling, holding that consumer contracts waiving the right to class arbitration are enforceable, and California case law maintaining otherwise is preempted by the Federal Arbitration Act. While Concepcion establishes the validity of class waivers in contracts, it leaves open the question of how to treat agreements that are silent on the 9

issue of class wide arbitration. What if a contract has an arbitration clause with no express class waiver? And who, between the trial court or an arbitrator, should make the determination of whether class wide arbitration may proceed in such circumstances? These are questions that have not been conclusively answered, but are on the cusp of resolution. The Supreme Court seemingly answered these very questions a decade ago in Green Tree Financial Corp. v. Bazzle. There, a plurality held that the question of whether a contract forbids class arbitration should be made by arbitrators because the issue concerns contract interpretation and arbitration procedures. In opinions bookending Concepcion, however, the Court backed away from Bazzle, and expressly confirmed that Bazzle does not control: “When Bazzle reached this Court, no single rationale commanded a majority.... In fact, [ ] only the plurality decided that question.” Stolt-Nielsen S.A. v. Animalfeeds International Corp., 559 U.S. 662, 678-80 (2010); see also Oxford Health Plans v. Sutter, 133 S.Ct. 2064, 2068 n. 2 (2013) (“StoltNielsen made clear that this Court has not yet decided whether the

availability of class arbitration is a question [for courts to decide].”). The Court has bolstered its refreshed view by emphasizing the importance of the class arbitrability decision. For example, class arbitration would mean that the arbitrator would no longer resolve a single dispute between parties to a single agreement, but instead resolve many disputes between hundreds or thousands of absent parties. Moreover, “the commercial stakes of class-action arbitration are comparable to those of class-action litigation, even though the scope of judicial review is much more limited.” Stolt-Nielsen, 559 U.S. at 685.


Spring 2015 Newsletter

Based on its recognition that class arbitrability is a significant issue with tremendous ramifications, and not merely a procedural device, it would appear that if the Court were presented with the issue, it would hold that class arbitration is a decision for courts to resolve. Notably, a majority of courts deciding this issue, including the Fourth District of the California Court of Appeal, have applied the Court’s recent dicta to conclude that a court must decide whether parties agreed to class wide arbitrations. A minority of courts, including the Second District of the California Court of Appeal, continue to cling to the holding in Bazzle as an express holding by the Supreme Court mandating that the issue is merely a procedural question that the

arbitrator should decide. For its part, the California Supreme Court is poised to decide this issue for the state; earlier this year, it granted petitions for review in two cases—one where the Second District held that the question of whether the parties agreed to class arbitration was for the arbitrator to decide, see Sandquist v. Lebo Automotive, Inc., 228 Cal.App.4th 65 (2014), and another where the Fourth District held that the question is for the trial court to resolve, Network Capital Funding Corporation v. Papke, 230 Cal. App.4th 503 (2014). The California Supreme Court’s imminent decision in Sandquist and Network Capital may generate more questions than answers. If, for example, the conclusion is that

the availability of class arbitration is a matter for the trial court to resolve, what is the future for class arbitration? Indeed, the subtext from the Supreme Court’s postBazzle rationale seems to be that it doubts arbitrators are suited to adjudicate class arbitrations at all, and therefore should not resolve the predicate question of whether class wide arbitration is available. See Concepcion, 131 S. Ct. 1740, 1751-52 (2011) (“[I]t is at the very least odd to think that an arbitrator would be entrusted with ensuring that third parties’ due process rights are satisfied.”). If trial courts follow the same reasoning, they may similarly conclude that arbitrations may not proceed on a class wide basis. Class arbitration may ultimately become an extinct procedural tool. ■

Lennette W. Lee is an attorney practicing commercial litigation at Caldwell Leslie & Proctor, PC in Los Angeles. For more info about Lennette, click here.

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CMCP Diversity Matters

ATTORNEY SPOTLIGHT ON

CARMEN COLE - Managing Partner, Littleton Joyce Ughetta Park & Kelly LLP By: Noah Pérez-Silverman, Attorney, Caldwell Leslie & Proctor, PC

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armen Cole, the managing partner of the Los Angeles office of Littleton Joyce Ughetta Park & Kelly LLP, loves to break the mold. Some of the ways in which she stands out are obvious: for instance, there are not many African-American women who are managing partners of law firms. Other ways are less so: there are also not many former competitive cheerleaders who love playing heavy metal electric guitar. But these are just a few of the ways Carmen defies expectations. Carmen’s independent streak started in her youth. Coming from a family where everyone—including her older brother and sister—took the military route after high school, she decided to go to college instead. She acknowledges that her initial motivation to get good grades was to remain on her high school’s competitive cheerleading team. But as her senior year drew to a close, she realized that her grades made her a strong college applicant and that pursuing a university education was the path she wanted. Without any immediate family members who had attended college, however, she did not know how to navigate the application process; she realized too late that she had missed the deadlines to apply for both admission and federal financial aid at most colleges. Undeterred, she submitted applications after the deadlines and was accepted to multiple universities anyway. She attended California State University, Fullerton, and worked full time at various jobs to put herself through college. Her college summers were spent working, either for an international hotel chain or as an instructor for Varsity – the world’s largest provider of professional

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cheerleading education and instruction. Carmen also worked during the summers in the mail room of a law firm, and it was this exposure that first made her think that a career in law could be the right fit for her. Even from reading faxes that were sent and received by the lawyers at the firm, she realized that a career in the law was never dull, as it involved working on different cases in different industries from one day to the next. After college, Carmen attended Pepperdine University School of Law, where she graduated in 2001. While in law school, Carmen was a regular on the competitive trial team and moot court competition circuit, winning Best Advocate awards in three national competitions. After formative years at other firms, including the Los Angeles and Atlanta offices of the international firm, McGuireWoods LLP, Carmen landed at Meserve Mumper & Hughes LLP, a Los Angeles litigation boutique.


Spring 2015 Newsletter

Having developed a practice focused primarily on employment law, she was elevated to partner at the Meserve firm in 2010.

Managing Partner the following year. “Go where you’re needed,” Carmen advises. “Even if they don’t yet know that they need you.” And she speaks from experience.

Unlike many in her law school class, Carmen did not go to law school because she loved to debate; she went because she loved to resolve. Defying the well-known stereotypes of lawyers, Carmen does not relish argument for argument’s sake. Although she is prepared to get aggressive when the situation calls for it, the part of law she enjoys the most—and the way in which she believes lawyers can be most effective—is working with both her clients and their adversaries to problem solve and achieve closure for all involved.

Carmen has had a variety of professional high points throughout her career. One that sticks out in her mind was her successful defense of a record label in a wrongful termination and employment discrimination action. Not only did she obtain summary judgment on all ten of plaintiff’s claims, the cross-claims she brought on behalf of the record label employer against the former employee survived summary judgment. The employer’s affirmative claims against the plaintiff were ultimately settled, leading to the unusual circumstance where the plaintiff actually paid the employer an undisclosed sum. Despite this and other standout moments in her career, Carmen still has goals. Like many litigators (even senior and partner level attorneys) she desires more trial experience. She will get her wish when she and a colleague take a personal injury case to trial this summer.

Indeed, Carmen’s focus on client service led her to leave law firm life and head in-house. Employing her expertise in employment law, she served as a Human Resources Director at her alma mater, Pepperdine University, from 2011 to 2012. In that role, she worked closely with the Office of the General Counsel on employment matters affecting a workforce of more than 2,000 employees and oversaw both the HR Department and the University’s Office of Insurance and Risk. Although she eventually left the University to become a law firm partner once again, she cherishes her time at Pepperdine, and believes it made her a better lawyer. “You understand far more intimately what drives a client’s decision-making when you have actually been the client,” she notes. It was not long before Carmen developed an itch for a return to the active practice of law. That desire led her back to private law firm practice at New York-based litigation boutique Littleton Joyce Ughetta Park & Kelly LLP. At the time, the firm did not have an employment practice. To an outside observer, Littleton Joyce might not have seemed like a good fit. But where others see lack, Carmen sees opportunity. It just so happened that Littleton Joyce was looking to grow its Los Angeles office and diversify its practice areas beyond its core products liability practice. Carmen joined the firm’s Los Angeles office in January 2013 with the objective of developing and growing the firm’s employment practice. She was elevated to office

Carmen became involved in CMCP while still an associate at the Meserve firm in 2009. She recognizes that instead of talking about how great it would be if minority attorneys had better access and opportunity in the legal profession, CMCP actually bridges the gap between that idea and the reality of minority lawyers building solid relationships and successful careers. Carmen actively participates in CMCP events, including serving on the 2011 Annual Conference Committee and as a panel speaker at the 2011 and 2014 conferences. She has also participated in CMCP’s Corporate Connections in four of the last five years. Carmen is involved with myriad other organizations as well, including the Defense Research Institute, the National Employment Law Counsel (NELC) and Black Girls Rock, a non-profit organization established to provide mentorship for young women of color. Her advice for young lawyers is to get involved in the broader business and social communities, not just legal organizations. Opportunity is more likely to arise Continued on next page…

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CMCP Diversity Matters from relationships with those with similar interests, not just from those who look like you. Carmen believes that diversity of interest is as important as racial, ethnic, gender or any other type of diversity. As for her own interests outside of the law, she is a heavy metal enthusiast, with a penchant for Metallica, Alice in Chains, Pantera, and Iron Maiden.

Her husband, Jeremy Colson, is a professional rock drummer and she loves to jam with him on her signature G&L Rampage electric guitar (a wedding gift from Jeremy). Needless to say, the jam is LOUD. With all the ways she defies expectations, it is no surprise Carmen’s career has been so successful. No doubt there is even more path-breaking ahead of her. ■

Noah Pérez-Silverman is an attorney at Caldwell Leslie & Proctor, PC in Los Angeles. For more info about Noah, click here.

San Diego Super Lawyers & Rising Stars 2015

Congratulations

CMCP Minority Attorney Members Super Lawyers Christopher Celentino Ballard Spahr LLP

Rising Stars Meagan E. Garland Cara & Garland, APLC

Katherine Joyce Larson Page DLA Piper US

Renata Ortiz Bloom Gordon & Rees LLP

Gary K. Brucker, Jr. McKenna Long Aldridge LLP

Aramide O. Fields Morrison & Foerster LLP

Valerie Garcia Hong Pettit Kohn Ingrassia & Lutz PC

Robert A. Ortiz Pettit Kohn Ingrassia & Lutz PC

Adriana R. Ochoa Procopio Cory Hargreaves & Savitch LLP

Mark G. Rackers Sheppard, Mullin, Richter & Hampton LLP

Alejandro E. Moreno Sheppard, Mullin, Richter & Hampton LLP

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Spring 2015 Newsletter

DISHing it out with the Fox: How the Second Screen Has Survived Fox’s Copyright Attacks By: David Michail, Managing Shareholder, metlawgroup

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anuary’s Central District of California ruling on Fox Broadcasting’s claims against the DISH Network clarifies some of the ambiguity surrounding second screen cross-device programming distribution and copyright infringement. Since 2012, DISH has offered its “DISH Anywhere” service which provides DVR capability for ad skipping and sling functionality, which permits subscribers to access live

and recorded programming from their set top box and “sling” it to their other peripheral devices (i.e. laptop, tablet, Smartphone, etc…). This scenario is typically referred to as the “Second Screen,” thereby enabling consumers to access programming whenever and wherever they want to consume it. For background, the DISH Anywhere service consists of a complex system of software applications, peripheral devices,

set top boxes and DISH’s backend servers, allowing consumers to copy recordings saved on their set top box DVR to their peripheral device and play them back at any location, at any time, even if the peripheral device is not connected to the Internet. The AutoHop feature allows subscribers to skip commercials during play-back of the programming. Fox filed a lawsuit against the DISH Network alleging that the sling Continued on next page…

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CMCP Diversity Matters unauthorized copying and distribution of content in violation of Fox’s copyrights. Specifically, Fox claimed DISH violated Fox’s exclusive right of public performance for its programming (16 U.S.C. 106(4)). The Court references the “Transmit Clause” of the US Copyright Act for public performance violations which requires (1) a transmission or other communication, (2) a performance of the work, and (3) to the public. While DISH had, pursuant to its license agreement with Fox, the right for an initial public performance (i.e. transmission of programming from its satellites to the consumers’ set top boxes), the court considered the more pressing “second screen” question; whether the DISH Anywhere and Sling Technology constitute a public performance in violation of Fox’s exclusive copyrights? Refuting Fox’s argument, the Court rejected the application of American Broadcasting Companies v. Aereo, Inc. (134 S. Ct, at 2501) which held Aereo’s streaming service of broadcast television over the Internet constituted a public performance because Aereo ‘s “community antenna television” service made them act like a cable company (which conduct had been expressly covered under the 1976 amendments to the US Copyright Act). Distinguishing DISH’s conduct,

the satellite service provider held a license to the initial transmission of the programming to subscribers via satellite. The Court noted that in DISH’s case, the consumer was the actor whom gained access to his/her own home set top box to authorize recorded content on that device, as opposed to Aereo, which streamed a subscriber-specific copy of the programming from Aereo’s own hard drives. The Court held that since programming was legitimately stored on the set top box, the transformative use of DISH’s external servers and equipment to ensure the content travels between devices at the request of the subscriber did not constitute a public performance. Most importantly, however, the Court held that DISH did not engage in any volitional conduct to implicate direct infringement because the consumer initiated the process, selected the content and received the transmission. The Court refuted the question of DISH’s contributory infringement by stating that since the user has legitimate possession of the programming on his/her set top box, and since they are only re-transmitting to himself/herself or someone in his household using an authenticated device, this act is not considered a public performance.

for quality control purposes and also violated its license agreement with Fox under a breach of contract theory (which limited the transmission to the set top box), this case has far reaching implications for copyright owners, consumers, advertisers and content distributors as it enables consumers to utilize their second screen to autonomously consume programming that they legitimately possess. For advertisers, the time-shifting capabilities of the DVR technology in conjunction with sling, essentially allows consumers to continue to watch commercial-free programming on any device they own. As a result, Content owners and advertisers are going to have to learn how to engage consumers more effectively through product and brand integration to avoid being marginalized on the second screen. ■

While the Court did rule partially for Fox in that it determined DISH engaged in unauthorized copying

David Michail is an intellectual property, marketing, media and technology attorney for metlawgroup in Southern California. For more information, visit www.metlawgroup.com.

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Spring 2015 Newsletter

Burnham Brown's 7th Annual Advancing Diversity Networking Reception Join us in CELEBRATING our commitment to diversity and inclusion by attending the 7th Annual Advancing Diversity Networking Reception hosted by Burnham Brown. Come Experience a Taste of Diversity!

Opening Remarks by:

Judge Stuart Hing Superior Court of California, County of Alameda When: Thursday, April 23, 2015 5:30 PM to 8:00 PM

Where: Burnham Brown 1901 Harrison Street, 14 Floor Oakland, CA 94612 Co-Sponsored by:

Registration: RSVP to Jill Yamasaki 510-835-6713 jyamasaki@burnhambrown.com

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CMCP Diversity Matters

Diversity Calendar April 6, 2015

April 8, 2015

April 22, 2015

2015 Outstanding Corporate Counsel Award Dinner

HNBA/METLIF & SFLRLA Networking and Mentorship Reception

Queen’s Bench Annual Cocktails & Couture Event

Los Angeles County Bar Association

San Francisco La Raza Lawyers

Queen’s Bench Bar Association

InterContinental Los Angeles Century City - LA

Carroll, Burdick & McDonough LLP

Weston Wear - SF

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April 23, 2015

April 23, 2015

April 23-26, 2015

OCAABA 2015 Installation Dinner

ACBA Spring Open House 2015

Orange County Asian American Bar Association

Alameda County Bar Association

Save the date! CABL Annual Conference and NBA Region IX Meeting

Hilton Orange County/Costa Mesa

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6:30pm - 9:30pm

5:30pm - 7:30pm

6:00pm - 8:00pm

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6:00pm - 9:00pm

4:30pm - 6:30pm

ACBA - Oakland

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(Tuesday-Thursday)

California Association of Black Lawyers & National Bar Association Hyatt Regency Century Plaza Hotel Read more

April 26, 2015

May 8, 2015

May 8, 2015

27th Annual Vintage Bouquet Food and Wine Extravaganza

2015 CWL Annual Conference

LGLA Annual Gala

Beverly Hills Bar Association

California Women Lawyers

Greystone Mansion - Beverly Hills

DoubleTree by Hilton SF Airport Burlingame

Lesbian & Gay Lawyers Associations of LA

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June 25, 2015

July 16, 2015

July 19-23, 2015

2015 Installation and Awards Dinner

31st Annual Judges Reception

90th Annual Convention & Exhibits

Los Angeles County Bar Association

Bar Association of San Francisco

Dorothy Chandler Pavilion - LA

455 Golden Gate Ave. - SF

National Bar Association Judicial Council

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12:00pm - 4:00pm

8:30am - 5:00pm

5:30pm - 9:00pm

5:30pm - 8:00pm

7:00pm - 11:00pm

Natural History Museum of LA County

The Westin Bonaventure Hotel - LA Read more

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CMCP Diversity Matters

Spring 2015 Newsletter

Spring 2015 Newsletter

MINORITY

Spring 2015

Š Copyright 2015 California Minority Counsel Program 465 California Street, Suite 635 San Francisco, CA 94104 Tel: 415-782-8990 Email: newsletter@cmcp.org Web: http://www.cmcp.org 19

CMCP Diversity Matters - Spring 2015  

California Minority Counsel Program Diversity Matters eNewsletter Spring 2015 Issue

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