Page 1

CMCP Diversity Matters Spring 2016 Newsletter

MINORITY

Spring 2016


CMCP Diversity Matters eNewsletter – Spring 2016 Issue

CMCP Diversity Matters

2016 eNewsletter Committee Members

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

Michael Chung

(Co-Chair) Counsel Davis Wright Tremaine LLP

Of Counsel Willenken Wilson Loh & Delgado LLP

Kim Hassan

Gagandeep Kaur

Noah Perez-Silverman

Kelly Perigoe

David Shimkin

Associate Reed Smith LLP

Associate Caldwell Leslie & Proctor, PC

Jonathan Turner

Partner Mitchell Silberberg & Knupp LLP

1

Karen A. Henry

Senior Regulatory Counsel Southern California Gas Company

Associate Caldwell Leslie & Proctor, PC

Member Cozen O’Connor

Raffi Zerounian

Counsel Hanson Bridgett LLP


Spring 2016 Newsletter

Table of Contents

page 3 page 5-8 page 9

Streamlining Demurrer Process With New MeetAnd-Confer Requirements CMCP Celebrates Black History Month with Leading Attorneys in High-Tech, Sports & Entertainment Law

Attorney Spotlight Series: An Inspirational Spotlight on Mia Yamamoto

page 14

Business Development Series: Does Every Request Deserve a Yes?

page 16

You Be the Judge: The Dispute Between Apple and The FBI/DOJ

page 19

Controversy On Controversy: Developments in First Amendment Doctrine Respecting Compelled Commercial Disclosures

page 23

Diversity Calendar Mark Your Calendars for Upcoming Diversity Events

2


CMCP Diversity Matters eNewsletter – Spring 2016 Issue

CMCP Diversity Matters

Revised California Rules Intended to Streamline Demurrer Process With New Meet-And-Confer Requirements By: Candice P. Shih, Associate, Hanson Bridgett LLP

C

alifornia courts are tired of hearing your demurrers, and now the state has done something about it. Code of Civil Procedure Section 430.41, which went into effect on January 1, 2016, now requires a meet-and-confer process before a demurrer is filed. The purpose of these requirements is to encourage parties to cooperate with each other to resolve their demurrer objections out of court. As the author of the bill enacting the changes stated, "some attorneys fail to make common sense, good-faith efforts to resolve conflicts and work out pre-litigation issues, instead

3

choosing to take most or all of the 30 days of time allowed for filing an amended complaint immediately prior to the demurrer hearing, thus wasting court resources." (California Committee Report, 2015 CA S.B. 383 (Sept. 4, 2015).) The changes are also intended to reduce the cycle where the plaintiff files a complaint, the defendant demurs, the court sustains with leave to amend, the plaintiff files an amended complaint, the defendant demurs again, the court sustains with leave to amend again, which may continue until the party bringing successive demurrers relents or the court denies a demurrer.


Spring 2016 Newsletter

Under the new rule, "the demurring party must meet and confer in person or by telephone with the party who filed the pleading" and identify with legal support the basis of the perceived deficiencies. (Civ. Proc. Section 430.41(a), (a)(1).) The non-demurring party then must respond with legal support of why its pleading is legally sufficient. (Id. at (a)(1).) The meet-and-confer must take place at least five days before the responsive pleading is due. (Section 430.41(a)(2).) If a live-time conference does not take place in time, the demurring party can file a declaration saying it made a good faith effort to meet and confer and why it did not happen, and it will receive an automatic 30-day extension to respond. (Id.) Regardless of its meet-and-confer efforts, the demurring party must file a declaration with its demurrer saying that it met and conferred and was unable to resolve all of its objections or that the non-demurring party failed to meet and confer with it. (Section 430.41(a)(3). The Code of Civil Procedure specifically states, however, that any finding that the meet-and-confer process was insufficient "shall not be grounds to overrule or sustain a demurrer." (Section 430.41(a)(4).) But any party dissatisfied with the meet-and-confer process might still want to bring its deficiencies to the court's attention.

• Generally, a complaint or cross-complaint shall not be amended more than three times in response to a demurrer, unless the pleading party can argue that additional facts can be pleaded such that there is a reasonable possibility the defect can be cured to state a cause of action. The limit also does not include an amendment made without leave of court pursuant to Civ. Proc. Code Section 472. (Id. at (e).) •

Are you a prisoner representing yourself or litigating an unlawful detainer? Then these rules don't apply to you. (Id. at (d).)

The state legislature also amended Civ. Proc. Code Section 472, which previously only allowed an amendment of a pleading once as of course before an answer or demurrer is filed, or after the demurrer and before the trial. Now, a party can amend its pleading as of course after a demurrer is filed but before it is heard if the amended pleading is filed and served by the date for filing an opposition to the demurrer. A party may only amend its pleading after that date upon stipulation by the parties under the current rule. The amendments to both Sections 430.41 and 472 are currently scheduled to sunset on January 1, 2021 in order to allow legislative evaluation of the changes.

A few other notes on this new rule: •

If you can demur to a portion of the complaint now, do it or accept that you will not be able to do so if it continues to appear in an amended complaint. (Section 430.41(b).)

If the court sustains a demurrer with leave to amend, it can now order a conference of the parties before an amended complaint is filed. In addition, the court can order a conference sua sponte, and a party may also request such a conference. (Id. at (c).)

Candice P. Shih, an associate at Hanson Bridgett LLP in San Francisco, practices general civil litigation and has developed expertise in the areas of insurance recovery, eminent domain, class action defense, and public agency litigation. For more info about Candice, click here.

4


CMCP Diversity Matters eNewsletter – Spring 2016 Issue

CMCP Diversity Matters

CMCP Celebrates

Black History Month with Leading Attorneys in High-Tech By: Evelin Y. Bailey, Associate, Wendel, Rosen, Black & Dean LLP.

T

his year’s Celebration of Black History Month event featured four in-house attorneys from leading technology companies who shared insights into challenges that face minorities in the legal profession, particularly African-American attorneys, and tips on being a top-notch attorney. Saidah Grayson Dill attended Stanford University and Georgetown University Law Center. Her outstanding work for Cisco Systems on the company’s first wage and hour class action as outside counsel put her on

5

the path to her current role as Director, Employment Law for Cisco Systems, Inc. One of her tips, applicable to all attorneys, is to network in-house. By networking, individuals can learn more about the services provided by the company (or firm). Individuals will not only form relationships but gain a better understanding of business/law firm partner expectations, which can help propel your career forward. Robert Harmon Jr. attended Columbia University and the University of Michigan Law School.

He began his career working as a real estate associate for a New York law firm before going in-house at Amazon and now serves as the Associate General Counsel for Tesla Motors, Inc., focusing on the areas of real estate and construction. According to Mr. Harmon, developing and maintaining minority attorneys requires a top to bottom approach. By an attorney’s third or fourth year, law firm partners should meet with associates to discuss career development goals, including the partnership track, or lose these same associates to other firms


Spring 2016 Newsletter

or in-house. Minority associate attorneys, on the other hand, need to continue providing great work product and manage their own career path, hopefully with the help of a partner. Andy Hinton attended Harvard University and Fordham School of Law. He started as a litigation associate working in commercial litigation and white-collar criminal defense at a New York law firm, served as a federal prosecutor for white-collar crimes in New York City and is now the Vice President & Chief Compliance Officer for Google, Inc. Whether going in-house or working for a law firm, Mr. Hinton’s advice is to choose an employer whose mission statement, values and ethics align with yours. He believes that law firm clients are responsible for creating opportunities for minority attorneys and clients need to push law firms to staff matters with a diverse group of attorneys. Melissa Tidwell attended Georgetown University and New York University School of Law. She also started her career in New York

before moving to the Bay Area. Prior to working as Reddit, Inc.’s General Counsel, Ms. Tidwell worked as Senior Counsel for Google, Inc, advising the Product, Engineering, Business Development and Sales teams on a variety of Google products. The lack of a science/ engineering background did not stop her from working in the tech field because her approach is to be solutions-oriented. She understands what her client wants to accomplish and provides advice on the approach the poses the lowest risk to the company. Her advice is to remain flexible, be proactive, and find mentors. Executive Director of the California Minority Counsel Program Robert White moderated the panel discussion. According to the 2015 legal analysis by the National Association for Law Placement, Inc. (NALP), the overall representation of minority attorneys has steadily increased since 2010 (from 12.59% to 13.97%) due to more Asian and Hispanic attorneys joining law firms. Yet, the already small percentage of African-American associates at large law firms has declined even further from

4.66% to 3.95%. The percentage of African-Americans among the partner ranks remains under 2%. The panelists identified several potential factors for these low figures. To start, the cost of a law school education has steadily increased. According to the American Bar Association, the average public law school tuition for resident students in 2012 was over $23,000, more than double the $9,000 tuition in 2002. Aspiring African-American law students may opt to attend a lower ranked, yet more affordable law school than be burdened by massive law school loans upon graduation. Rather than recruit only from top 10 law schools, firms should make an effort to diversify the list of their on-site campus visits during recruiting season to ensure their summer associate class from which firms usually hire remains diverse. At the associate level, law firms should take a more proactive approach to mentoring. Communicate the expectations each partner may have of Continued on next page‌

6


CMCP Diversity Matters eNewsletter – Spring 2016 Issue

associates and provide strategies on producing not only a great work product but a great working relationship as well. Helping associates with their career development may prevent associates from making a lateral

CMCP Diversity Matters

move or going in-house. In-house counsel must also take proactive steps to support the diversification of the legal profession. In-house counsel, for example, can request that a diverse group of attorneys perform the work.

This Black History Month event was made possible by Kevin L. Nichols, who helped organize this annual event. Dr. Candace Johnson of the University of California Berkeley, Department of Music, performed Lift Every Voice and Sing, which is

CMCP Celebrates

African-American Leaders in Sports & Entertainment Law By: Michael Chung, Of Counsel, Willenken Wilson Loh & Delgado LLP

In the SoCal version of CMCP’s “Conversation with Black Attorneys” event, CMCP members were treated to a distinguished panel of prominent attorneys in the Sports and Entertainment industry here in Los Angeles. The February 26, 2016 event featured Kobie Conner, Vice President, Business Affairs at 20th Century Fox, Nicole Duckett Fricke, General Counsel and Vice President of the LA Clippers, Jeffrey Harleston, General Counsel and Executive Vice President of Business and Legal Affairs at Universal Music Group and Channing Johnson, Partner at Loeb and Loeb, and was moderated by CMCP’s very

7


Spring 2016 Newsletter

also known as the Negro National Anthem. Paula Harrell, owner of budding wine label P. Harrell, showcased a Zinfandel and a Riesling. Orrick, Herrington & Sutcliffe LLP hosted the event.

Evelin Y. Bailey is an associate in the employment practice group at the Oakland firm of Wendel, Rosen, Black & Dean LLP. For more info about Evelin, click here.

own Robert White. The panelists discussed how their backgrounds and experiences shaped their career trajectories and also offered important lessons for younger lawyers. As minority attorneys, members of the panel recounted how their exposure to lawyers when they were growing up was often through television shows like “L.A. Law” and that once they entered the legal field, they were naïve about the challenges faced by minority attorneys. The panelists urged young lawyers that as minority attorneys, “if they wanted something, they had to go out and get it.” The importance of relationships was also emphasized as many of the panelists recalled how they were able to obtain certain positions not because they simply applied for them, but because they knew someone who recommended them.

Michael Chung, Of Counsel, Willenken Wilson Loh & Delgado LLP. He can be reached at michaelchung@willenken.com or 213-694-3697.

8


CMCP Diversity Matters eNewsletter – Spring 2016 Issue

CMCP Diversity Matters

MEET YOUR NEW CMCP BOARD MEMBERS

ATTORNEY SPOTLIGHT ON

MIA YAMAMOTO

By: Noah Pérez-Silverman, Attorney, Caldwell Leslie & Proctor, PC

I

t is impossible to spend an hour with Mia Yamamoto without leaving inspired. She’s one of those rare people who seems to accomplish more in a year than most do in a lifetime. Over the course of one leisurely lunch, I got to pick her brain on everything from her birth in a Japanese internment camp, to her years in a rock band, to her work ending international torture, to what she describes as her proudest accomplishment so far: her transition from male to female. And with her background as a frequent news commentator on the O.J. Simpson trial, we even discussed her thoughts on the recent FX series The People v. O.J. Simpson. But what struck me most was how unimpressed Mia seemed to be with her own highly impressive life. “Don’t dwell too much on your past accomplishments,” she told me. “People who do tend to accomplish very little.” And you can tell she takes her own advice. Despite the groundbreaking and influential life she has already led, I get the definite sense that Mia’s greatest accomplishments still lie ahead.

9

Mia was born Michael Yamamoto, in a Japanese internment camp during World War II. Her father was the first Asian-American graduate of Loyola Law School, in 1934, and he used the court system to challenge the internment of the JapaneseAmericans. Mia notes that her father naively believed that the U.S. Constitution would protect his family from being needlessly imprisoned when they had done nothing criminal. But he underestimated the profound power race can have to create alliances—and divisions—and to set policy. With this origin, Mia grew up with a strong sense of justice and an understanding of the importance of breaking down racial barriers. But Mia is the first to admit that it was the Brown v. Board decision, even more so than her father’s work fighting Japanese internment, that drew her to a legal career. Hearing about that decision, which she understood even in her youth was handed down long before much of the country was ready to accept it, Mia realized that lawyers can actually take the lead on social issues—that they can change the world.


Spring 2016 Newsletter

Of course, many young people go to law school with lofty ambitions of changing the world, but how many follow through? Mia’s career charts her continuing desire to make as big a change as possible. Her public service started immediately after graduating from UCLA Law School. She spent three years at the Legal Aid Foundation, helping indigent clients with legal problems. Although she appreciated making a difference in her clients’ lives—working on landlordtenant disputes, juvenile dependency cases, or divorces—she felt that she was not making a large enough impact. So she decided to move to the Los Angeles County Public Defender’s office. Mia loved criminal defense work, which she still practices to this day. In her ten years at the PD’s office and her years since in private practice, she has handled everything from DUIs to murder trials. But she still felt humbled by what she perceived as the relatively small scale of change she was effecting; even though she was working tirelessly and passionately for her clients and making a huge impact in their lives, she still felt impotent to correct broader societal problems. “Still today,” she emphasizes, “if you walk into a criminal courtroom you will see almost exclusively white judges, white lawyers, and minority defendants. No one can look at that and tell me we don’t have a racial problem with our criminal justice system.” Over time, Mia began to realize that it was through organizational work that she could make the biggest impact. She got involved with a number of organizations, including the California Attorneys for Criminal Justice, of which she eventually became President. Through that entity, Mia worked to achieve passage of Proposition 47, which reduced several nonviolent crimes from felonies to misdemeanors; she is still working with CACJ today towards abolishing the death penalty. The organization also offers death penalty defense training for lawyers to better serve their clients facing capital charges. One person who took to heart Mia’s advice—that organizational work is where you can make the

biggest difference—is Karen Tse, a woman Mia mentored through UCLA law school. Mia remembers vividly the night Karen graduated from UCLA. They were sitting together at dusk, and Karen suggested they make a wish on the moon, which was full that night. Mia said that since she was the mentor and Karen had just graduated, Karen should make a wish, and Mia would try to help her fulfill it. Karen replied with a bolder wish than any Mia could have anticipated: she wished they could end torture throughout the world, and she stated that now she expected Mia’s help. From law school, Karen went to divinity school and founded International Bridges to Justice (IBJ), a non-profit dedicated to ensuring that criminal defendants in developing countries have early access to counsel and to bringing an end to the use of torture as an investigative tool. If you want to be inspired and don’t have the luxury of a lunch with Mia Yamamoto, I encourage you to Google “Karen Tse” and watch her short but powerful TED talk on ending torture. In it, she points out that most victims of torture throughout the world are not political prisoners or suspected terrorists, as we might imagine. They are common people, suspected of only petty crimes, who are tortured for an easy confession. Karen notes that unfortunately, torture is common because it is the cheapest form of investigation. But Karen—and Mia—are determined to bring a stop to this practice. Mia kept her full-moon promise, joining the founding board of IBJ and helping it get off the ground. Mia laughs, recalling that she felt a little out of place on a board made up almost entirely of clergy—Karen’s contacts from divinity school—with Mia herself being an atheist. But Mia was fully committed to IBJ’s work. As part of IBJ, Mia has traveled to China multiple times, giving trainings to Chinese leaders on how other legal systems work, including access to defense counsel, due process, and the unreliability of confessions obtained through torture. To gain access to a Chinese audience, IBJ had to characterize its presentations as concerning “rule of law” issues, Continued on next page…

10


CMCP Diversity Matters eNewsletter – Spring 2016 Issue

CMCP Diversity Matters

rather than “human rights” issues. But once their foot was in the door, they realized how receptive the legal community in China—including the police— is to their message. Among other work, IBJ gives presentations to cops about the rights of criminal defendants, and several police departments even requested that IBJ make copies of their posters, which explain the rights of the accused, for law enforcement to display in the police stations. But obstacles still remain. Just for giving these trainings or trying to implement their teachings, lawyers have been jailed or tortured themselves. Undeterred, Mia is still an active participant in this organization 15 years later. She notes that people who are completely innocent are still wasting away in prisons throughout the world; and even those who are guilty are often serving penalties far more severe than their crime warrants. Mia has no intention of giving up on this organization any time soon.

in society. She hopes that maintaining a high profile will help other trans people feel more comfortable being who they are. Indeed, since Mia had her own transition, two DAs have also successfully completed a gender confirmation transition.

But above all of this work, Mia tells me that her proudest life accomplishment was when, in 2003, she transitioned from male to female. Needless to say, it took an incredible amount of courage for Mia to make this transition, particularly 13 years ago, when transgender rights were not the hot topic they are today. And she feared the worst, having witnessed the offensive way some judges and prosecutors spoke to transgender criminal defendants. So she was pleasantly surprised at the outpouring of support she received. Congratulations flowed in. Judges would come down from the bench to give her a hug. The Daily Journal even wrote a front page article about her. To this day, she feels a little uncomfortable with the attention she gets. She has been given numerous awards, and she jokes that sometimes she feels like perhaps the only reason she’s getting an award is because she’s transgender. (Anyone familiar with Mia’s life and career, of course, would quickly counter that her life is praiseworthy even putting aside her transition, and that the importance and impact of her transition should not be discounted in any event.) But she accepts the accolades because she realizes how important it is for others to see trans people who are successful, who are being honored, who are esteemed

Mia quickly informed me that her second proudest accomplishment was the 10 years she spent at the public defender’s office. She loved her time there, and even formed a rock band with fellow PDs called “Use a Guitar, Go to Prison,” in which she played guitar and provided lead vocals, from 1978 until 2005. She has fond memories of her years in this band, which performed all around Southern California. She is a long-time fan of Bruce Springsteen, traveling all around the country to see him perform, even joining together with fellow public defenders to follow his tour to London and back in 1981. Mia is still a mega-fan; she attended all three performances the Boss gave in March at the LA Sports Arena. Although “Use a Guitar, Go to Prison” no longer performs, Mia still makes time to perform with other various musical groups.

11

From there, our conversation turned to the current state of trans rights and visibility in the U.S., covering everyone from Caitlyn Jenner to Laverne Cox to Zoey Tur. Mia thinks that the obvious next battleground for the trans community concerns access to public restrooms, and she also wants to see trans people accepted in the military. But as much as she cares about and is affected by the fight for trans rights, I can tell that her true passion, her deepest calling, is for the individual rights of the accused: the right to counsel, the right to be free from torture. It is in this arena, when talking about these issues, that her face really lights up and her speech gets charged.

Despite her positive experiences at the PD’s office and her bright future there, she finally decided to leave, in large part because she felt pressure not to be too political. Mia admits that she had pretty strident views during her time as a public defender, which was clear from the very beginning of her tenure there. When applying for the job, she interviewed with Mark Horton of the PD’s office, and was surprised that someone


Spring 2016 Newsletter

from the DA’s office participated in her interview as well. The practice at the time, unbeknownst to Mia, was to have someone from both offices interview candidates, so they could see which office would better suit the applicant. For Mia, that answer was clear: her immediate reaction to the DA’s presence was a curt “What is he doing here?,” which Mark Horton found hysterical. But it is this same spirit that made her eventually want to chart a different path. She wanted to be un-muzzled; to be able to join a protest if she wanted to, without worrying that her actions would be a reflection on the office. For instance, as president of California Attorneys for Criminal Justice, she wrote an anti-war piece right after 9/11 for which she took a lot of flak. She does not believe she could have written an opinion piece like that had she still been working as a PD. One place where Mia got to spout her opinions regularly was as a commentator on the O.J. Simpson trial. Early on in the case, she was approached by Channel 9 news executives to provide television commentary. She initially declined, not wanting the spotlight in that way. But when Channel 9 pointed

out that Mia herself was always saying that the news and television needed to be more diverse, and that they needed to present people of color as experts, Mia relented. (She also used that position to encourage Channel 9 to bring on several other minority commentators as well.) Indeed, Mia was a perfect candidate to provide commentary on the trial; in addition to being an accomplished criminal attorney herself, Mia was also close friends with Johnny Cochran and knew Marcia Clark well from meeting in the criminal courts. With this background, I had to ask Mia if she was watching American Crime Story: The People v. O.J. Simpson on FX, which she was. She was impressed with the level of detail the show created, and raved about Sarah Paulson’s performance as Marcia Clark—how she really captured the difficulty Marcia was facing, including the intense media scrutiny that Marcia was unprepared to handle. But Mia acknowledges that, as a criminal defender herself, her own commentary necessarily approached the case from her defense perspective. Continued on next page…

12


CMCP Diversity Matters eNewsletter – Spring 2016 Issue

Mia also had an acute awareness of how race impacted the O.J. case. Johnny Cochran would tell her stories that he would show up for criminal hearings impeccably groomed, dressed in his finest Armani suits, and still the judge would turn to Johnny’s white clients to ask them how their client pleads. It’s a story not unfamiliar to many female attorneys who have been mistaken for court reporters, or racial minorities such as Mia who have been mistaken for interpreters. Indeed, Mia reflects how more than half a century after the Korematsu decision upheld the internment of Japanese-Americans, people are still so quick to make assumptions based on race. “Race is so powerful,” Mia noted. “It makes people feel kinship with some people, and distanced from others.” It’s why she is so impressed with and supportive of organizations like CMCP, that help bridge racial divides. Whether it’s African-American children who need access to previously-segregated public schools, transgender people who need access to the restrooms that conform to their gender, or minority lawyers who need access to the sort of advantageous connections that for so long were available only to attorneys who were straight white men, Mia views all of these fights as part of the same broader struggle: breaking down barriers and including people who were previously excluded.

CMCP Diversity Matters

prosecutors, “and you can’t hate your adversaries when you are impressed with their lawyering.” Now she tries to get to know the prosecutors as individuals. Nevertheless, she is dismayed that the prevailing sentiment seems to be that the best way to get ahead in a legal career is to become a prosecutor, and that even defense-minded people Mia knows encourage their own kids to be prosecutors. Not Mia. When she meets law students, she points out that prosecutors always have the upper hand in a case; then she asks them: “If you were learning to play poker, would you want to be the player who always has the best cards? Or would you want to be the player who plays whatever random hand she’s dealt? True, the player with the best cards will win most of the time. But the player who plays the hand she’s dealt is free to pursue any strategy she chooses—she has to be crafty about strategy. And over time, who will learn to be the better poker player? To become a really good lawyer, you have to face uphill battles.” And to those who are still reluctant, she adds, “The PDs have the best parties (and the cool DAs party with the public defenders)!”

As we finished lunch and started packing up, I looked over my notes and could not believe how much ground we had covered in an hour. More than that, I got the genuine sense that I had only scratched the As for Mia’s own advice for the next generation of tip of the iceberg in terms of Mia’s life history. So I was lawyers? She told me: “What you do for money supports surprised when Mia told me that her biggest regret you. But what you do for free defines you.” She hopes is that she feels she has not made a large enough that everyone follows a career that allows them to serve impact on society. It is this constant drive to make the public interest or the common good. But, she’s a difference—coupled with her refusal to accept the also practical. To people who are primarily concerned status quo—that makes me confident Mia isn’t going with making money, she says, “Great! Go make lots of to stop working to change the world any time soon. money! And then donate it to charity, because there are tons of organizations—such as International Bridges Noah Pérez-Silverman is an attorney at Caldwell Leslie’s to Justice—that need your financial support. So if you Los Angeles office. Noah has an impressive breadth of can’t support the public good with your entire career or experience. He has handled complex privilege issues, supervised voluminous electronic discovery projects, your time, then do it with funds.” For those interested in criminal law, she strongly urges people to become public defenders. Mia acknowledges that she has more respect for prosecutors than she once did. In her years of criminal practice, she has seen a lot of quality litigating from

13

and helped obtain terminating sanctions against an adversary for litigation misconduct. For more info about Noah, click here.


Spring 2016 Newsletter

Business Development Series:

Does Every Request Deserve a Yes? By: Martha Sullivan, Principal, Thornton Marketing

I

have a rule for some of my high-achieving coaching clients. They are not allowed to say “yes” to any new project or task until they have thought about it for 24 hours. In the context of business development, you might think this is a strange rule. Normally, I encourage my coaching clients to be fully engaged in biz dev and to be diligent about implementing their marketing plans. But I’ve noticed that many lawyers need permission to say no once in a while. If you are constantly balancing (perhaps juggling is a more accurate word) billable hours, involvement in bar associations and other professional associations, practice group or firm commitments, and being mentored by or mentoring others, you may not have enough hours in the day for having a personal life, as well. Your cup, as they say, may already runneth over. Some of my clients think this is simply a “time management” issue. If they plan to work more efficiently or work more hours each day, they feel certain that they can take on more tasks. In theory, this is a fine idea. However, most lawyers find that at some point, those additional hours may be productive for simpler tasks, but are not helpful in working through more complex matters. Strategic thinking can’t be rushed. If you are focused on completing smaller tasks as quickly as possible, you may have trouble shifting to quieter, more sustained concentration for large projects. As I’ve written in the past, relationships are critical to client retention and business development. When you are distracted by having too many commitments, the quality of those relationships will suffer. A major aspect to maintaining relationships is communication. Can you have a conversation where it is possible to listen fully, without being distracted by everything else you need to accomplish today? Constantly being overbooked can make it difficult to focus on your client’s issues and be fully present. Continued on next page…

14


CMCP Diversity Matters eNewsletter – Spring 2016 Issue

CMCP Diversity Matters

Setting Priorities In law firms, like most organizations, busy people are asked to take on more tasks. The thinking is that someone who gets things done has the capacity to get even more things done. If you are one of those people, you have to anticipate requests and have a way to evaluate them. As I’ve said many times, it is important to have a written marketing plan. If you know what you’re trying to accomplish with your practice, it becomes easier to make choices about where to spend your precious time. If you don’t have a plan, it will be harder to know which requests will ultimately benefit your practice. You can end up spending time on someone else’s pet project, and neglect your own biz dev priorities. For example, if you are asked to join an association, your decision should be based on several questions. Are the members of that association a network that is important to you? Can you take on a leadership role? Will you have opportunities to speak or be visible in other ways? And finally, is the association meaningful to you in some way? Before you commit, consider how much time and energy you can devote to a new association.

Responding to Requests While you may not always have a choice about the “opportunities” within your firm, I’ll suggest that there are several ways for you to respond to requests for your involvement in outside associations or professional organizations. •

An immediate yes, only if you truly have time and the commitment is meaningful to you.

A provisional yes. For example, serving on a bar association committee or board is something you want to do, but not this year. New members are always needed, and you can be involved in the future.

You can provide a referral to someone else in your firm who could benefit from involvement.

Don’t hesitate to give a clear “no.” You don’t have to make someone else’s priority your priority, especially when it comes to your “free” time.

If you use your marketing plan to keep track of your commitments outside of work, you will know whether you have the capacity to do more, or whether you need to defer new commitments. Martha Sullivan is a business development coach for attorneys and other professional service providers. She is certified as a professional coach and has more than 25 years of experience in marketing and business development. For more info about Martha, click here.

15


Spring 2016 Newsletter

You Be the Judge: The Dispute Between Apple and The FBI/DOJ By: Karen A. Henry, Counsel, Davis Wright Tremaine LLP

U

nder the Constitution, the federal courts are courts of “limited jurisdiction,” which essentially means that, in the absence of a specifically delineated judicial power provided under the Constitution or federal law, the federal courts have no authority to grant relief to a petitioning party, no matter how dire the circumstance or the need for the relief requested. But there is a statute – the All Writs Act (“AWA”) – that has been on the books for over two centuries and that has been a source of controversy and debate over precisely what is meant by the concept of limited jurisdiction, particularly when matters are brought before the court that arguably raise matters of national security. Under the AWA, “all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). This relatively simple and short statutory phrase, which the United States Supreme Court has described as “a residual source of authority to issue writs that are not otherwise covered by statute,” has proven to be a fertile ground for litigation, most recently in the San Bernardino massacre.

On December 2, 2015, a holiday party for the San Bernardino County Department of Public Health (the “Department”) was interrupted when two ISIS-inspired terrorists armed with semiautomatic rifles and pistols sprayed attendants with bullets, leaving 14 dead and nearly two dozen wounded. The assailants, Syed Rizwan Farook, who worked for the Department, and his wife Tashfeen Malik, died later that evening during a shoot-out with law enforcement. In the wake of this bloodbath, numerous warrants were issued to facilitate the FBI’s investigation of the incident, including warrants to search Farook’s and Malik’s digital devices and online accounts. Through these warrants, the FBI discovered information that provided context for the couple’s savagery, like a statement that Malik posted on her Facebook page the morning of the massacre, pledging allegiance to the leader of ISIS The FBI also seized from Farook’s car an iPhone that he used for work. The FBI believed that the iPhone may reveal persons with whom Farook and Malik may have communicated to plan and carry Continued on next page…

16


CMCP Diversity Matters eNewsletter – Spring 2016 Issue

out the mass murder, locations to and/or from which Farook and Malik may have traveled before and after the shootings, and other details about the incident. The Department, which owned the device, consented to its search, but iPhones and the operating system on which they run are equipped with a variety of security features that prevented the FBI from accessing the data stored on the device. Three of these security features are particularly relevant to this discussion. First, iPhones “lock.” In other words, they are secured by a user-determined passcode. Second, the operating system for this iPhone model contains “auto-erase” functionality, which if enabled would render the content on the device permanently inaccessible after 10 consecutive, but unsuccessful, attempts to enter the passcode. Third, the operating system for this iPhone model uses a “large iteration count” to slow attempts to access the device. Under this process, each time a user enters an incorrect passcode, a certain period of time must elapse before the operating system will allow the user to make another attempt, and the duration of these “waiting periods” increases with each failed attempt. Use of a “large iteration count” ensures that it would take literally years to try all combinations of a six character alphanumeric passcode. Because these security features were preventing the FBI from accessing the content on Farook’s locked iPhone, the FBI requested that Apple, the manufacturer of the device, create software to disable these features. When Apple declined the request, the Department of Justice (the “DOJ”) applied for and received an ex parte order compelling Apple to provide “reasonable technical assistance to assist law enforcement agents in obtaining access to the data on [Farook’s iPhone]” (“Ex Parte Order”). The court explained that Apple’s “reasonable technical assistance” must accomplish the following three important functions: (1) bypass or disable the autoerase function, whether or not it has been enabled; (2) enable the FBI to electronically submit passcodes to Farook’s iPhone to determine the correct passcode by “brute force”; ⁱ and (3) ensure that when the FBI

17

CMCP Diversity Matters

submits passcodes, software running on the device will not introduce any additional delays between passcode attempts. The court further explained that Apple could comply with the Ex Parte Order by some “alternate technological means,” if the DOJ concurred, and indicated that Apple could seek relief from the Ex Parte Order to the extent Apple believed compliance would be unreasonably burdensome. Apple and the DOJ filed cross-motions, with Apple moving to vacate the Ex Parte Order and the DOJ moving to compel Apple’s compliance with it. Before the court was able to hear these motions, however, the FBI was able to “unlock” Farook’s iPhone using software provided by another technology company. As a result, the parties’ motions were moot, and the hearing dates for those motions were vacated. But this disposition of the parties’ dispute leaves key issues unresolved, including the threshold question of whether the AWA – the statute the DOJ relied on to obtain the Ex Parte Order – provides the appropriate legal framework within which to balance the FBI’s interest in investigating terror, on the one hand, and Apple’s interest in maintaining the integrity of its intellectual property and in safeguarding consumers’ privacy rights, on the other hand.ⁱⁱ As noted, the AWA provides that “all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). The AWA has been on the books for more than two centuries, and the United States Supreme Court has described it as “a residual source of authority to issue writs that are not otherwise covered by statute.” Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34, 43 (1985). Some courts have relied on the AWA to compel third parties to provide purportedly “non-burdensome” technical assistance to law enforcement personnel. See, e.g., U.S. v. New York Tel. Co., 434 U.S. 159 (1977) (compelling telephone company to implement pen register and trap and trace device); In re U.S. for an Order Directing a Provider of Communication Services to Provide Technical Assistance to Agents of the U.S. Drug


Spring 2016 Newsletter

Enforcement Administration, 2015 WL 5233551 (D.P.R. Aug. 27, 2015) (compelling provider of electronic communications services to facilitate recording of electronic communications to and from mobile phone); Application of U.S. for an Order Authorizing an In-Progress Trace of Wire Comm’ns over Tel. Facilities (“Mountain Bell”), 616 F.2d 1122, 1132-1133 (9th Cir. 1980) (affirming order compelling telephone company to trace telephone calls); U.S. v. Hall, 583 F. Supp. 717, 722 (E.D. Va. 1984) (compelling credit card company to produce customer records); In re Application of U.S. for an Order Directing X to Provide Access to Videotape, 2003 WL 22053105, at *3 (D. Md. Aug. 22, 2003) (compelling phone company to assist with monitoring of phone calls). In U.S. v. New York Telephone Co., 434 U.S. 159, 174-175 (1977), the United States Supreme Court identified three factors that must be considered in determining whether, under the AWA, a third party may be compelled to assist law enforcement with warrants: (1) whether the third party is “so far removed from the underlying controversy that its assistance could not be permissibly compelled”; (2) whether the order would place an undue burden on the third party; and (3) whether the assistance of the third party is necessary to achieve the purpose of the warrant. Applying these factors, the Court in New York Telephone affirmed an order compelling the telephone company to install a pen register (a device that records dialed numbers) on two telephones. If the parties’ motions had been heard, would these three factors have supported the Ex Parte Order compelling Apple to create software to disable the security features on Farook’s iPhone? Not surprisingly, Apple and the DOJ came to different conclusions on this question. The DOJ argued that the New York Telephone factors weighed in favor of the Ex Parte Order because: Apple is sufficiently connected to the underlying controversy, as it retains exclusive control over the software that can be used on iPhones; creating software to defeat the iPhone’s safety features would not impose an unreasonable burden on Apple, since it is one of the most tech-savvy companies in

the world; and the FBI cannot carry out the search of Farook’s iPhone without Apple’s assistance. Apple disagreed, contending the three factors did not support the Ex Parte Order. Apple argued that it had no connection to the underlying controversy, as it did not own or possess Farook’s phone, and had no connection to the data on that phone or to the events giving rise to the FBI’s investigation; that the Ex Parte Order imposed an unreasonable burden because it compelled Apple to write new code, rather than simply disable existing functionality; and that the FBI failed to demonstrate that it had exhausted other avenues for recovering information from Farook’s iPhone. You be the judge. Which side had the better argument? Does the AWA’s analytical framework strike the right balance between law enforcement’s interest in investigating terrorist activity and preventing future attacks, and Apple’s interests in maintaining the integrity of its operating systems and in safeguarding its customers’ privacy interests? The eNewsletter Committee invites you to weigh in; you can post comments here, or you can tweet at us or visit us on Facebook.

ⁱ “Brute force” refers to an application that attempts to “crack” a passcode by cycling through all possible combinations of alphanumeric characters, in sequence and at the speed of a modern computer. ⁱⁱ The parties also considered the applicability of the Communications Assistance for Law Enforcement Act (“CALEA”) and whether the Ex Parte Order violated the First Amendment, but a discussion of these legal theories is beyond the scope of this article. Karen Henry is Counsel at Davis Wright Tremaine’s Los Angeles office. Litigating in state and federal court, Karen maintains a broad and diverse practice, focusing primarily on media, IP, and entertainment law. In her practice, she defends clients in a range of matters, including copyright, trademark, right-of-publicity, theft of ideas, defamation, and invasion of privacy litigation. For more info about Karen, click here.

18


CMCP Diversity Matters

Controversy on Controversy: Developments in First Amendment Doctrine Respecting Compelled Commercial Disclosures By: Brendan Charney, Associate, Davis Wright Tremaine LLP

T

he First Amendment is well known as a limit on state power to restrain speech. Attempts to censor a newspaper, film, or video game, or to limit discussion in a public forum, are subject to the most exacting — and often insurmountable — constitutional scrutiny1. This concept is so embedded in culture that the Texas Supreme Court recently cited the exhortation by John Goodman’s

19

character in The Big Lebowski that “the Supreme Court has roundly rejected prior restraint!”2 Freedom of speech has a less conspicuous corollary: the First Amendment also disfavors laws that compel speech. As the Supreme Court put it: “[t]he right to speak and the right to refrain from speaking ‘are complementary components of the concept of ‘individual freedom of mind.’”3

Recent caselaw, however, has left unclear what burden the government must meet if it seeks to force a professional or business to disclose state-mandated messages on its products or commercial expression. The seminal compelled-speech cases struck down laws that coerced political messages. Holding that a state could not force students to salute the U.S. flag,


Spring 2016 Newsletter

the Supreme Court emphasized that “[i]f there is any fixed star in our constitutional constellation, it is that no official…can prescribe what shall be orthodox in politics… religion, or other matters of opinion.”4 The Court applied this reasoning to enjoin enforcement of a law forcing drivers to display license plates bearing New Hampshire’s assertive motto “live free or die,”5 and to hold unconstitutional a law that forced Florida newspapers to provide a “right of access” giving political candidates printed space to reply to the newspaper’s criticism.6 Laws compelling speech in the commercial context can also implicate “freedom of mind”: the autonomy of a professional or businessperson over whether and how to express a message or belief. For instance, as Karen Henry addresses in this issue, the FBI’s attempt to force Apple to develop code to unlock an iPhone raised the (still unresolved) question of the extent to which professionals or businesses may be compelled to create expressive content to aid criminal investigations or national-security interests asserted by the government.7 This article provides a brief overview of First Amendment doctrine respecting compelled disclosures in commercial speech.8 Examples of disclosure requirements abound. For instance, state and federal law forbid deceptive advertising,9 and there are several disclosure

guidelines that suggest best practices for disclosing information to prevent liability, including the Federal Trade Commission’s “[Dot]Com Disclosures”10 guide, its “Endorsement Guide,”11 and its guide to “Native Advertising”12 (which refers to advertisements and “sponsored” content that are formatted to mimic traditional editorial content). In California, Proposition 65 mandates that businesses disclose the presence of chemicals that the state knows to be toxic.13 And there are myriad disclosures required by local governments.14 Accordingly, business and media counsel frequently must determine whether a disclosure is required; and, if so, how to phrase it — or whether to challenge the law.15 “Commercial” speech — defined as speech that “does no more than propose a commercial transaction”16 — is constitutionally protected if it is lawful and not

misleading; under the Supreme Court’s Central Hudson test, regulation of commercial speech is subject to intermediate scrutiny and, to survive such scrutiny, must 1) further a “substantial” government interest; 2) “directly advance” the interest; and 3) be no more extensive than necessary to serve the interest.17 Challenges to restrictions on commercial speech are generally evaluated under Central Hudson scrutiny; but disclosures in advertising may be subject to an even more lenient “reasonable relationship” review — despite the Supreme Court’s observation that both restrictions and compulsions trench on “freedom of mind.” In Zauderer v. Office of Disciplinary Counsel, the Supreme Court confirmed that “compulsion to speak may be as violative of the First Amendment as prohibitions on speech,” but held that a commercial speaker has only a

20


CMCP Diversity Matters eNewsletter – Spring 2016 Issue

CMCP Diversity Matters graphic images of smoking harm, holding the labels controversial as “inflammatory,” not “pure attempts to convey information to consumers.”25

“minimal” interest in withholding facts that might prevent deception.18 The court reasoned that commercial speech warrants protection chiefly because of its function to disseminate truthful information, and noted that disclosures are a less-restrictive alternative to an outright ban on potentially deceptive advertising.19 Accordingly, the Court held that commercial disclosure requirements are constitutionally permissible if they are “reasonably related to the State’s interest in preventing deception of consumers.”20 Under this standard, disclosures will generally be upheld if they compel only “purely factual and uncontroversial information.”21

or pertinence is disputed, 2) it depends on ideology or subjective value judgments, or 3) if it appeals to emotions rather than reason. In Int’l Dairy Foods Assoc. v. Amestoy, for instance, the Second Circuit suggested that impertinent disclosures are too controversial to be compelled, striking down a Vermont law requiring dairy producers to disclose whether their products were treated with growth hormone because, absent evidence that growth hormone harmed public health, consumers did not have a substantial interest in the disclosure under the Central Hudson test.23 The Seventh Circuit enjoined an Illinois law requiring that an “18” sticker be placed on certain “sexually explicit” But what is “factual” or video games, reasoning that “uncontroversial” is itself debatable, the sticker was “subjective and as “what is claimed as fact may highly controversial” because it owe more to faith than science and represented an “opinion-based” what is or is not controversial will judgment by the state respecting lie in the eye of the beholder.”22 sexual mores.24 And, in R.J. Cases from various circuits suggest Reynolds Tobacco Co. v. FDA, that a disclosure may be too the D.C. Circuit applied Central “controversial” to be compelled Hudson to strike down a law if, among other things: 1) its truth requiring that cigarette labels bear

21

Recent caselaw has left unclear what level of scrutiny should apply to compelled disclosures that are not “factual,” “uncontroversial,” or intended to prevent deception.26 The en banc D.C. Circuit recently held in American Meat Institute v. USDA (“AMI”), that Zauderer’s “reasonable relationship” test — not Central Hudson scrutiny— should apply to commercial disclosures even when the disclosure is not required to prevent deception: in AMI, for instance, disclosure was sustained to satisfy consumers’ interest in knowing the country of origin of their food.27 In AMI, the en banc D.C. Circuit thus overruled R.J. Reynolds’ application of Central Hudson intermediate scrutiny, reasoning that the Zauderer test can be thought of as “an application of Central Hudson” tailored to the unique context of compelled commercial disclosures.28 A subsequent panel of the D.C. Circuit, however, sought to cabin AMI and limit Zauderer’s application, holding in Nat’l Ass’n of Mfrs. v. S.E.C (“NAM”) that Zauderer’s reasonable relationship test only applies to disclosures in pure advertising, and that more exacting scrutiny should apply to compelled disclosures removed from direct sales, such as disclosures on websites or in


Spring 2016 Newsletter

reports.29 In NAM, the D.C. Circuit considered whether firms that use minerals can be forced to disclose, in annual reports sent to the SEC and posted on the firms’ websites, whether the minerals were “conflict free.”30 Given uncertainty regarding the proper level of scrutiny, the court applied Central Hudson to strike down the disclosure requirement, and also held that, even if Zauderer applied, the label “‘[not] conflict free’” was not “purely factual and uncontroversial” because it reflects an ideological determination that mineral firms bear “moral responsibility” for conflict in the Congo.31 On the bright side, the AMI court’s reasoning — along with the D.C. Circuit’s subsequent decision in NAM — imply that graphic emotional appeals and ideological messages (which failed to pass the Central Hudson test prior to AMI32) will still be too “controversial” to be compelled under the Zauderer test.33 On the other hand, it may be overly optimistic to expect that a “reasonable relationship” test can provide the same constitutional protection as Central Hudson’s intermediate scrutiny, which forces the government to rigorously justify laws that force a person to speak. After all, an interest in a food product’s country of origin seems weak compared to preventing deception; accordingly, the dissent in AMI warned that, if such a “flimsy interest” can justify compelled

speech on a business’s product, there is “no limiting principle” preventing the government from “commandeer[ing] the speech of others,” meaning that, under the AMI majority’s reasoning, “a business owner no longer has a constitutionally protected right to refrain from speaking.”34 This prompts the question: should professionals and businesspeople be forced to surrender their “freedom of mind” as to what speech appears on products or expression related to commerce?

Brendan Charney is an associate at Davis Wright Tremaine LLP in Los Angeles. Brendan focuses his practice on media and intellectual property law and has litigated motions in state and federal courts; counseled documentary filmmakers and other creative clients on fair use and other legal issues. For more info about Brendan, click here.

In the last few years, the Supreme Court has made clear that businesses and corporate entities have First Amendment rights to express and exercise political and religious principles.35 These authorities, along with Maynard, Barnette, Central Hudson, and Zauderer highlight that the Constitution should protect businesses and professionals from being compelled to express what might be called “opinions,” beliefs,” or “sentiments.” It remains to be seen, however, how far these constitutional protections can be extended to strike down regulations that require disclosure for ancillary purposes beyond providing facts to prevent deception. As this area of law develops, there will continue to be opportunities for principled businesses and professionals to challenge regulations that compel them to say what they do not believe. Click here for references

22


CMCP Diversity Matters Diversity Calendar

May 6, 2016

May 12, 2016

May 12, 2016

2016 CWL Annual Conference

Cocktails & Couture

2016 Orange County Luncheon

California Women Lawyers

Queen's Bench Bar Association

Hilton Concord - Concord

Weston Wear - SF

Asian American Advancing Justice Los Angeles

Read more

Read more

8:30am - 5:00pm

6:00pm - 8:00pm

11:30am

Twenty-Eight Restaurant - Irvine Read more

May 19, 2016

May 19, 2016

May 26, 2016

AABA's 2016 Kick Off Open House

Barristers Club Happy Hour

Barristers Spring Social

Asian American Bar Association of the Greater Bay Area

Bar Association of San Francisco

Los Angeles County Bar Association

Infusion Lounge - SF

John Colins - SF

Drago Centro - LA

Read more

Read more

June 2, 2016

June 2, 2016

June 4, 2016

ACBA Annual Barristers and Judges Social

MCLE (Wet Lab)

BWL 41st Annual Scholarship Fundraiser & Awards Luncheon

Alameda County Bar Association

JAMS - Orange

6:00pm - 8:00pm

6:00pm - 8:00pm

6:00pm - 9:00pm

Read more

5:30pm - 7:30pm

5:30pm - 7:30pm

Lungomare Restaurant - Oakland

JAMS Read more

Read more

11:00am - 2:00pm

Black Women Lawyers Association of Los Angeles Casa del Mar - Santa Monica Read more

June 24, 2016

July 13, 2016

July 21, 2016

36th Annual Installation Dinner: Filipiniana

OCLBA: 2016 Anniversary Party

ACBA 2016 Summer Reception

Orange County Lavender Bar Association

Alameda County Bar Association

Sky Garden @ Michelson Building, Irvine

Read more

6:00pm

5:30pm

Filipino Bar Association of Northern California Oakland Rotunda

Read more

Read more

23

5:30pm - 7:30pm

Bocanova - Oakland


CMCP Diversity Matters

Spring 2016 Newsletter

Spring 2016 Newsletter

MINORITY

Spring 2016

Š Copyright 2016 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 16

CMCP Diversity Matters - Spring 2016  

California Minority Counsel Program Diversity Matters eNewsletter Spring 2016 Issue

Read more
Read more
Similar to
Popular now
Just for you