CMCP Diversity Matters Summer 2014 Newsletter
CMCP Diversity Matters WELCOME Welcome to the new CMCP Diversity Matters newsletter! We’re pleased to launch with the first issue of the year – Summer 2014. The CMCP Newsletter is now published quarterly and will continue to deliver great content sourced and written by CMCP member attorneys. Some of the new features include: • New look and feel for the email newsletter • A digital magazine version, where you can flip through the pages and interact with content The CMCP newsletter will continue to bring you substantive legal articles, attorney interviews and profiles conducted and written by CMCP members, business development articles, news and highlights from across CMCP’s membership, recaps of CMCP events, and upcoming diversity events in the legal community. We encourage our members to send us writings, suggestions and ideas for upcoming issues. For more info: http://cmcp.org/newsletter
Our 2014 Newsletter Committee
Welcome and Thank You – 2014 CMCP Newsletter Committee
Tambry Bradford (Committee Co-Chair) Special Counsel, Pepper Hamilton LLP
Farzaneh Savoji (Committee Co-Chair) Principal, Tax Law Associates
Michael Chung Attorney, Law Office of Michael Chung
Karen Henry Senior Associate, Davis Wright Tremaine LLP
Cassandra Mougin Shareholder, Pettit Kohn Ingrassia & Lutz PC
Laju Obasaju Associate, Rosenfeld, Meyer & Susman LLP
Noah Perez-Silverman Associate, Caldwell Leslie & Proctor, PC
Kelly Perigoe Associate, Caldwell Leslie & Proctor, PC
David Shimkin Member, Cozen O'Connor
Mala Sahai Principal, Alchemy IP & Tech Law
Summer 2014 Newsletter
Table of Contents
Terminated & Reversed
Attorney Spotlight: Puneet Kakkar
Copyright Grants and the Termination Gap Dilemma. On January 1, 2013, many artists and musicians who transferred their copyright rights following the enactment of the Act thirty-five years ago finally gained the opportunity to terminate those transfers.
A rising star at Caldwell Leslie & Proctor, Puneet handles both civil litigation & white-collar criminal defense, and spends considerable time advising and counseling entertainment clients on IP issues. Despite a very full plate, Puneet makes time for community efforts and pro bono work, as he says “take a stand on what you believe in, and do things to support that cause.”
POM Wonderful vs. Coca-Cola Lanham Act Claims Are Not Precluded by Compliance with the FDCA. In POM Wonderful LLC v. Coca-Cola Co., decided last month, the U.S. Supreme Court confirmed that companies can bring unfair competition actions under the Lanham Act even when their competitors have complied with the Federal Food, Drug, and Cosmetic Act (FDCA).
The Biggest Mistake You Can Make at Networking Events? What are your assumptions when going to networking events, and how can you adjust them to improve your experience? page 12
CMCP Member Highlights: Southern California Rising Stars 146 CMCP minority member attorneys selected to Super Lawyers’ Southern California 2014 Rising Stars list!
CMCP Events Recap & Highlights
May 19, 2014: Networking & meeting the CMCP board of directors at Wells Fargo History Museum, downtown Los Angeles. page 14 June 19, 2014: Screening of CMCP & Keker & Van Nest hosted and sponsored documentary film, Walk the Walk. page 16
Diversity Calendar Calendar of upcoming diversity related events in California’s legal profession. page 19
CMCP Diversity Matters Termination and Reversion of Copyright Grants and the Termination Gap Dilemma I. Introduction The 1976 Copyright Act (the “Act”) has been in effect since January 1, 1978. Since that time, the Act has provided authors (and some heirs, beneficiaries, and representatives) with the right to terminate prior grants of their copyrights under certain conditions and within specific time frames. Notably, on January 1, 2013, many artists and musicians who transferred their copyright rights following the enactment of the Act thirtyfive years ago finally gained the opportunity to terminate those transfers. The rationale underlying the termination provisions is clearly equitable in nature; namely, to allow authors or their heirs a second opportunity to share in the economic success of their works. The House Report accompanying the Act explains that the provisions are “needed because of the unequal bargaining position of authors, resulting in part from the impossibility of determining a work’s value until it has been exploited.” Furthermore, the Congress that enacted the Act specifically recognized the necessity of “safeguarding authors against unremunerative transfers” as justification for providing authors with the opportunity subsequently to terminate prior transfers. The termination provisions involve very specific and formulaic time frames and notification requirements for two types of grants: those grants made prior to January 1, 1978 (the date on which the Act went into effect), and those grants executed on or after such date. However, despite Congress’s clear intent to provide authors and/or their heirs with a second bite of the apple, an unfortunate oversight on Congress’s part in drafting the Act has created a dilemma that could prove costly for many authors and heirs looking to exercise their termination rights. Specifically, the dilemma involves how the Act’s termination provisions should apply, if at all, to what have come to be known as “gap works.” Gap works are works transferred and/or assigned by an agreement dated before the effective date of the Act (January 1, 1978) but not actually created until on or after January 1, 1978. This “gap dilemma,” unless clarified by Congress, could affect authors by, among other things, generating a multitude of litigation, thereby undermining the purpose of the Act and deterring authors from enforcing their reversion rights by making it cost-prohibitive to do so. II. Overview of Termination Rights Under the 1976 Copyright Act A. Sections 203, 304(c), and 304(d) The law relating to the termination of transfers and reversionary rights in connection with copyright grants executed on or after January 1, 1978, is set forth in 17 U.S.C. § 203. The law relating to the termination of transfers and reversionary rights for copyright grants in existence prior to January 1, 1978, is set forth in 17 U.S.C. § 304(c)-(d). Both §§ 203 and 304 vest in authors and/or their heirs a right to terminate their prior grants during a set time period after their execution, and are designed “to protect authors and to confer on them an additional opportunity to profit from their works.” 1. Termination of the Grant Section 203 provides that any exclusive or nonexclusive grant of a transfer of copyright, “executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination.” The “[t]ermination of the grant may be effected at any time during a period of five years beginning at the end of thirty-five years from the date of execution of the grant.” Section 304(c), on the other hand, provides that the exclusive or nonexclusive grant of a transfer or license of the renewal copyright or any right thereunder, executed before January 1, 1978, otherwise than by will, is subject to termination. Under § 304(c), “[t]ermination of the grant may be effected at any time during a period of five years beginning at the end of fifty-six years from the date copyright was originally secured...
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transfer or license of the renewal copyright or any right thereunder, executed before January 1, 1978, otherwise than by will, is subject to termination. Under § 304(c), “[t]ermination of the grant may be effected at any time during a period of five years beginning at the end of fifty-six years from the date copyright was originally secured, or beginning on January 1, 1978, whichever is later.” Thus, as opposed to § 203, in which the time frame is based on the “date of the execution of the grant,” under § 304 the termination time-frame is based on “the date [the] copyright was originally secured.” Additionally, § 304(d) provides another opportunity for authors and/or heirs to terminate a grant made prior to January 1, 1978, if the grant is not timely terminated during the window allowed by the fifty-six-year measure set forth in § 304(c). Where § 304(c) termination rights have expired on or before the effective date of the Sonny Bono Copyright Term Extension Act, which went into effect on October 27, 1998, and the author or owner of the termination rights has not previously exercised any termination rights, the grant may be terminated at any time during a five-year period beginning at the end of seventy-five years from the date on which the copyright was originally secured. The termination of this twenty-year extension is subject to all of the other requirements of termination that are applicable to grants terminated under § 304(c). Terminations of grants under both §§ 203 and 304(c)–(d) “may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant.” Generally speaking, the only transfers excluded from the termination of grants are for works made for hire and grants made by will. Additionally, there are limitations relating to the termination of a grant to the extent such grant includes foreign rights, which are not terminable, and derivative rights, which, if exercised prior to the termination, can generally continue to be exploited. 2. Notice of Termination (a). Notification Periods Under § 203, the earliest date on which a termination notice may be served in connection with grants that are executed on or after January 1, 1978, is twenty-five years after execution of the grant, and the latest date on which such termination notice may be served is thirty-eight years after execution of the grant. In sum, the termination must take effect during the five-year window following the end of year thirty-five, but the notice can be given as early as ten years prior to the start of the five-year window, and must be given, at the latest, two years before the five-year window closes. For example, if an author’s grant was executed on January 1, 1978, the five-year termination window would begin on January 1, 2013, and run until January 1, 2018, and the period for serving the notice of termination would begin on January 1, 2003 (twenty-five years after the grant) and end on January 1, 2016 (thirty-eight years after the grant). (See Illustration No. 1, below) Illustration No. 1 - Re § 203 Grant Date
Date grant was executed:
Earliest date a termination notice may be served is twenty-five years after execution of the grant, and latest date is thirtyeight years after:
May be effected at any time during five year period beginning at end of thirty-five years from the date of execution of the grant:
January 1, 1978
January 1, 2003 – January 1, 2016 January 1, 2013 – January 1, 2018
CMCP Diversity Matters Termination and Reversion of Copyright Grants and the Termination Gap Dilemma
Similarly, under § 304(c), the termination must take effect during the five-year termination window; however, rather than starting after thirty-five years, it follows the end of year fifty-six (or beginning on January 1, 1978, whichever is later), or the end of year seventy-five, under § 304(d). Also similar to § 203, under § 304, the notice can be given as early as ten years prior to the start of the five-year window (i.e., forty-six years from the date on which the copyright was originally secured under § 304(c), or sixty-five years under § 304(d)), and at the latest, two years before the five-year window ends. For example, under § 304(c), if the copyright was originally secured on January 1, 1939, the original five year termination window would have begun on January 1, 1995, and run until January 1, 2000, and the period for serving the notice of termination would have begun on January 1, 1985 (forty-six years after the copyright was secured), and have ended on January 1, 1998 (fifty-nine years after the copyright was secured). (See Illustration No. 2, below) Illustration No. 2 - Re § 304(c) Date Copyright Notice Period Secured
January 1, 1939
The earliest date a termination notice may be served is fortysix years after copyright was secured,and the latest is fiftynine years after:
May be effected at any time during five year period beginning at end of fifty-six years from the date copyright was originally secured, or beginning on January 1, 1978, which ever is later:
January 1, 1985 – Jan. 1, 1998
January 1, 1995 – Jan. 1, 2000
However, under § 304(d), assuming that the author or owner of the termination rights has not previously exercised such rights under § 304(c), because the termination rights expired before October 27, 1998 (i.e., the effective date of the Sonny Bono Copyright Act), there is an additional five-year termination window beginning on January 1, 2014, and running until January 1, 2019. The period for serving the notice of termination under this additional period would begin on January 1, 2004 (sixty-five years after the copyright was secured) and would end on January 1, 2017 (seventy-eight years after the copyright was secured). (See Illustration No. 3, below) Illustration No. 3 – Re § 304(d) Date Copyright Additional Notice Period Secured
January 1, 1939 4
Additional Termination Period
When original notice period (Jan. 1, 1985 – Jan. 1, 1998) expires on or before effective date of Sonny Bono Copyright Term Extension Act (effective Oct. 27, 1998), and the termination rights were not previously exercised, the earliest date a termination notice may be served is sixty-five years after copyright was secured, and the latest is seventy-eight years after:
May be effected at any time during five year period beginning at end of seventy-five years from the date copyright was originally secured:
January 1, 2004 – Jan. 1, 2017
January 1, 2014 – Jan. 1, 2019
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(b). Notice Requirements The requirements relating to the actual notices of termination under § 203 and § 304(c)–(d) are also similar. While there are some differences regarding the persons and number of persons who must sign the notice, both Sections require that the termination be effected by serving an advance notice in writing upon the grantee or the grantee’s successor in title, which shall state the effective date of the termination, and which shall fall within the five-year termination window. These Sections also require that the notice be served not less than two or more than ten years before that date. Additionally, both Sections require that a copy of the notice be recorded in the Copyright Office before the effective date of termination as a condition to its taking effect. Finally, both Sections set forth that the notice “shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation.” The requirements prescribed by the Register of Copyrights are set forth in 37 C.F.R. § 201.10(b)(1)–(2) and include, but are not limited to: a statement that the termination is made under § 203 or under § 304(c) or 304(d); the name of each grantee whose rights are being terminated, or the grantee’s successor in title, and each address at which service of the notice is being made; a brief statement reasonably identifying the grant to which the notice of termination applies; and the effective date of termination. III. The “Termination Gap” Dilemma A. The Problem With Grants of “Gap Works” The “termination gap” dilemma refers to “gap works,” which are works for which transfers were made by an agreement executed before January 1, 1978, but that were not created until after January 1, 1978 (the effective date of the Act). These works literally fall within a “gap” between the two sections by which an author or heir may terminate a copyright transfer (§§ 203 and 304(c)–(d)) and, unfortunately, leave open the question as to whether or not termination rights apply to such works. Due to the fact that §§ 304(c) and (d) only allow for the termination of a grant in connection with “any copyright subsisting in either its first or renewal term on January 1, 1978,” those sections would be inapplicable to “gap works” under the plain language of the statute because the copyrights for those works (i.e., those works created after January 1, 1978), would obviously not be subsisting as of January 1, 1978. However, the applicability of § 203 to such works is also unclear. Due to the fact that § 203 only allows for the termination of a grant “executed by the author on or after January 1, 1978,” it would also arguably, under the plain language of the statute, be inapplicable to any grant made by an agreement entered into before January 1, 1978. B. Recent Steps Taken By The Copyright Office To Address The “Termination Gap” Dilemma In March 2010, recognizing this dilemma, the Copyright Office posted a Notice of Inquiry requesting comments regarding how best to handle “gap works.” In response , the Copyright Office received numerous comments and in December 2010, issued a detailed analysis of gap grants under the termination provisions of Title 17. The Copyright Office summarized the nature of the problem, in particular whether or not § 203 should apply to gap works, as “a very technical question,” namely: “Is it possible for an author to execute a grant prior to creating the work of authorship?” The Copyright Office answered this question in the negative, ruled that in the case of a grant signed before January 1, 1978, regarding rights in a work not created until January 1, 1978, or later, such grant cannot be “executed” until the work exists. Accordingly, thereafter, the Copyright Office amended Section 201.10 of 37 C.F.R., in connection with “Notices of termination of transfers and licenses,” to allow termination notices for “gap works” to be accepted and recorded with the Copyright Office.
CMCP Diversity Matters Termination and Reversion of Copyright Grants and the Termination Gap Dilemma
The amendment added a new paragraph (f)(5), which reads: “In any case where an author agreed, prior to January 1, 1978, to a grant of a transfer or license of rights in a work that was not created until on or after January 1, 1978, a notice of termination of a grant under § 203 of title 17 may be recorded if it recites, as the date of execution, the date on which the work was created.” While the Copyright Office should be applauded for its proactive attempts to address the gap dilemma, its efforts and subsequent amendment to its notice requirements do not in any way act as a substitute or remove the need for this issue to be addressed by Congress and/or the courts. The Copyright Office has acknowledged the need for further resolution by noting that “the Office’s recordation of notices of termination of Gap Grants is without prejudice to how a court might ultimately rule on whether any particular document qualifies as a notice of termination within the scope of § 203, consistent with longstanding practices for all notices of termination recorded by the Office.” Further, the Copyright Office has stated that “[i]f there is any dispute over the validity of such a notice of termination (or of notices of termination of Gap Grants in general), that dispute should be settled in the courts (or in Congress, if Congress accepts the Office’s suggestion to enact legislation that will clarify the status of Gap Grants).” Moreover, as correctly pointed out by attorneys Michael Perlstein, Bill Gable, and Kenneth D. Freundlich, in their comment to the Copyright Office regarding the Notice of Proposed Rule Making, the Copyright Office’s conclusion that “execution of the grant” in § 203 means the post-1977 date when a work is created while correct, on its own is “likely to generate litigation.” The reason for this result is because without any corresponding statutory framework setting forth how the date of execution of the grant (i.e., the date of creation) should be determined and established, the Copyright Office’s amendment raises questions about what an author (or author’s heirs) must show to prove a date of creation. The problem, as explained by the attorneys, is that “neither authors nor their grantees (e.g. publishing companies) were ever on notice that they needed to retain documents evidencing date of creation (as distinguished from date of delivery, for example) and that even if such documents may once have existed neither party often will have preserved them.” The Copyright Office’s “requirement of identifying a date of creation 35-40 years after the fact, is unrealistic and likely to generate litigation,” which is something that these regulations should seek to avoid. The comment of Perlstein, Gable, and Freundlich also proposed a series of guidelines for possible future legislation to set forth other bases to determine the date of execution of a grant under § 203, which, as they describe, are “author-friendly [and] consistent with the legislative and judicial intent that authors and their heirs benefit from the termination statutes.” The guidelines they propose are an “order of priority” of documents and other means to be used to determine the date of execution of the grant, including, but not limited to, “written documentation signed by the author, e.g. a short form instrument of transfer or single song agreement . . . or note or memorandum of some sort, with a date post-1977,” and “the date of publication as set forth on the Certification of Registration,” etc. Whether or not Congress adopts any or all of these proposed guidelines or other similar type guidelines, it is clear that a more practical framework and statutory clarity are necessary.
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IV. Conclusion Congress’s intent in passing the Act was clearly to give authors or their heirs a second opportunity to share in the economic success of their works, and, so as such, it seems unlikely that Congress intended to exempt “gap works” from possible termination. However, while the Copyright Office has concluded that “the reasonable interpretation of Gap Grants is that they are terminable under section 203 as it is currently codified,” until there is clarity on this issue from Congress, or a judicial decision on this point, it is likely that Congress’s intent to ensure that authors have enforceable termination rights will be undermined. As stated by the Copyright Office itself, “lack of clarity will likely result in costly delays, the prospect of inconsistent or unfavorable court decisions, or a state of play where termination rights are left unexercised.” Hopefully Congress will take action soon to clarify this issue and to preserve what was clearly meant to be a legislative means to protect authors and their works, not to drown them in unnecessary and expensive litigation. by Pierre B. Pine, Senior Associate Attorney at McPherson Rane LLP’s Los Angeles Office firstname.lastname@example.org; 310-553-8833
CMCP Diversity Matters Attorney Spotlight: Puneet V. Kakkar, Caldwell Leslie & Proctor, PC. Growing up in an immigrant family, Puneet Kakkar witnessed firsthand the injustices and burdens faced by his parents and other immigrants, in part because they lacked command of the English language. He saw that the law was often used unfairly to take advantage of others, particularly the most vulnerable. These experiences shaped Puneet’s desire at an early age to go to law school, with a goal of doing his part to level the playing field. Born in the U.S. to parents that were forced from their homeland due to the partition of the Punjab region in 1947, Puneet also developed an early appreciation for the impact of international events on people’s lives and a strong interest in international law and policy. Puneet’s interests led him to an internship at the U.S. Embassy in Paris as part of his undergraduate studies at UC Berkeley. At the embassy, Puneet received an invaluable education, sitting in on diplomatic meetings, preparing briefings and press reviews, and attending various state and embassy receptions. He followed that with an internship at the U.S. Supreme Court, where part of his duties was to coordinate the hosting of judges and academics visiting from foreign countries to learn about the U.S. judicial system. During college and law school at Boalt Hall, Puneet continued to feed his passions by interning at the Department of State, Afghanistan Office and the U.S. Department of Justice. After Boalt, Puneet clerked for U.S. District Judge Valerie Baker Fairbank following a stint at a top law firm. He later worked as a volunteer attorney on criminal justice reform at International Bridges to Justice in New Delhi, India. Today, it’s hardly surprising that Puneet is a rising star at Caldwell Leslie & Proctor (recipient of the CMCP Majority Owned Law Firm Award in 2013), where he handles both civil litigation and white-collar criminal defense matters. Puneet also spends considerable time advising and counseling entertainment clients on intellectual property issues. Despite a very full plate, Puneet continues to make time to support organizations providing services that align with his passions and interests. For example, Puneet serves on the Board of Governors of the Asian Pacific American Bar Association, previously served as the President of the South Asian Bar Association (SABA), and led SABA’s Public Interest Foundation for 3 years. Puneet was recently named to the Editorial Advisory Board of the California Lawyer magazine, a board that includes the likes of Chief Justice Tani Cantil-Sakauye, State Treasurer Bill Lockyer, and Southern California Edison General Counsel Russell C. Swartz. He is also a founding member of the Council of Advisors for the South Asian Network, a nonprofit advocacy group. A strong sense of justice drives Puneet’s community efforts and he regularly serves the Asian Pacific American community pro bono, including participating in “know your rights” seminars and legal clinics, and prosecuting wage theft. Working in conjunction with Asian Americans Advancing Justice in Los Angeles, Puneet represented a Bangladeshi cook who had suffered from sexual harassment and who spoke little English. 8
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When she reported the abuse, the restaurant owners fired her and even sued her for defamation. Puneet provided pro bono counsel on the matter, and along with Asian Americans Advancing Justice, obtained a very favorable $45,000 settlement for his client. More importantly to Puneet, the settlement was reported in the local ethnic papers and sent a strong message within the “Little India” community that such abuses would not be tolerated. Puneet considers such pro bono work a part of his practice, and points out that the work allows him to expand his skill set and obtain invaluable litigation experience that would ordinarily take longer within the firm context. He also credits his firm’s unwavering support of his pro bono work and his community activities, recalling events where more than two-thirds of the entire firm’s attorneys came to show support, including all of the senior leadership. In fact when asked if he wanted to highlight some people that have played key roles in his career, Puneet states without hesitation “everyone at my firm” (which is not an answer you hear often). Puneet also counts U.S. District Judge Fairbank as a key mentor who has helped him immeasurably. Recently, Puneet has turned his considerable talent to working against an election strategy that targets incumbent California Superior Court Judges with ethnic names. These challengers appear to rely solely on name distinction, as they do not campaign, have no judicial experience, and are rated to be significantly less qualified than the incumbent judges. These judges, unlike many of their colleagues on the bench, must expend significant efforts and expenses to campaign, and Puneet saw this as a call to action. He has worked with the community to inform the electorate of the issue and helped produce videos of interviews with the judges. Puneet hopes this kind of strong community mobilization will dissuade further attempts at what the legal community views as racially motivated challenges, and more importantly, preserve minority and quality representation on the bench. “We should be proud of our last names, and we want to support our excellent judges of minority descent on the bench and encourage more to join them,” he states. When asked for advice for those starting out their legal profession, Puneet states that finding mentors is important, but stresses that it’s key to find a mentor who you want to emulate beyond just his or her job title and professional achievements. Puneet’s final words of wisdom to newer attorneys: “Take a stand on what you believe in, and do things to support that cause.” By doing so, newer attorneys not only provide much needed service and support to worthy causes, they also realize a tremendous sense of personal fulfillment, gain valuable work experience, and begin to build their professional networks. “Won Hur is Of Counsel at Lee, Hong, Degerman, Kang & Waimey in Los Angeles. Won is a transactional attorney focusing on business and vendor transactions for Global 500 companies in the consumer electronics, broadcasting, mobile phone, automobile, and financial services industries. Won can be reached at email@example.com”
by Won Hur, Of Counsel at Lee, Hong, Degerman, Kang & Waimey’s Los Angeles Office firstname.lastname@example.org; 213-623-2221
CMCP Diversity Matters Lanham Act Claims Are Not Precluded by Compliance with the FDCA In POM Wonderful LLC v. Coca-Cola Co., decided in June, the U.S. Supreme Court confirmed that companies can bring unfair competition actions under the Lanham Act even when their competitors have complied with the Federal Food, Drug, and Cosmetic Act ( FDCA). The upshot of the decision is that food and beverage companies must carefully review their labeling, advertising and marketing campaigns to ensure that they are both complying with the FDCA and not subjecting themselves to Lanham Act exposure from making misleading product claims.
POM Wonderful LLC (“POM”) produces and sells a pomegranate-blueberry juice blend. POM brought a Lanham Act suit against Coca-Cola for allegedly marketing one of its juices in such a way that it misled consumers into thinking that the product contained much more pomegranate and blueberry juice than it actually does. In fact, POM alleged that Coca-Cola’s product only contained .6% of pomegranate and blueberry juice combined. Coca-Cola moved to dismiss in the District Court on the grounds that the FDCA and its regulations preclude and preempt any Lanham Act challenges to the method or content of Coca-Cola’s marketing of its juices. The Ninth Circuit affirmed in relevant part, and POM appealed. The Lanham Act was enacted in 1946, for the purpose of “making actionable the deceptive and misleading use of marks in [ ] commerce [and]… to protect persons engaged in such commerce against unfair competition…” 15 U.S.C. Section 1127. The Act creates a cause of action based on unfair competition through misleading advertising or labeling. This provision allows competitors to sue each other, with the happy side result that consumers benefit from the elimination of misleading marketing campaigns. Put another way, the statute is a way for the government to out-source some of its enforcement duties at no cost. Coca Cola argued that the FDCA statutory regime allowed it to use the allegedly misleading label. Unlike the Lanham Act, which relies on private actors to enforce its provisions, the FDCA and its regulations grant only the U.S. government the standing and authority to employ the statute. The Supreme Court granted certiorari to consider whether a private party may bring a Lanham Act claim regarding a food or beverage label that is regulated by the FDCA. In addressing the preemption argument, the court observed that this was not a pre-emption case per se, since there were two federal statutes at issue, and not one state statute and one federal statute. The court analyzed the two statutes and determined that there was no intent by Congress for the FDCA to act as an implied repeal of the Lanham Act. Rather, the Court observed, the statutes complement each other because while, “[b]oth touch on food and beverage labeling, …the Lanham Act protects commercial interests against unfair competition, while the FDCA protects public health and safety.” Specifically, the Court pointed out, the FDA does not pursue enforcement against all objectionable food labels, and so the Lanham Act helps fill a void for 10
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competitors, with the indirect result that consumers are also benefited. And the Court noted that while the FDCA is enforced by the Food and Drug Administration, the Lanham Act permits private actors to sue competitors to “protect their interests on a case-by-case basis.” The key takeaway from this decision is that a company’s strict compliance with the FDCA does not ensure that it will be free from a Lanham Act suit by a competitor. So food and beverage companies must scrutinize their labeling, advertising and marketing campaigns to ensure that they do not leave themselves exposed to Lanham Act liability. As the Court noted, the FDA does not preapprove food and beverage labels, unlike drug labels. Food and beverage companies, then, might reasonably believe that they are in compliance with the FDCA, only to find themselves subject to a Lanham Act suit, and, possibly, liability. Companies that do business in California must also make sure that they do not run afoul of California’s strict Unfair Competition Law as well, so a self-audit for possibly misleading labels is vital. From a philosophical perspective, this holding seems to affirm the principle that private corporations with real financial stakes in the proceedings are better positioned to regulate the market than consumers or the government. Ultimately, should the cases go to trial, however, the public will still have its say in the matter. by David A. Shimkin, Member at Cozen O’Connor’s Los Angeles Office email@example.com; 213-892-7988
CMCP Diversity Matters What’s the Biggest “Biz Dev” Mistake at Networking Events? At the CMCP event on January 30, I had an interesting conversation with Earl Bentancourt from Myriad Litigation Solutions. Given that we were both attending an event that was designed to be about networking, Earl asked a relevant question. He said, “What is the biggest mistake lawyers make at networking events?” My short answer was that lawyers attend an event once, talk to (or talk at) only a few people, leave without getting new business, and decide that the event was a waste of time. Some lawyers decide that the association that sponsored the event is probably also useless, and the other attendees had “nothing to offer.” Some lawyers vow never to return. These opinions reflect a number of faulty assumptions. The first assumption is that the purpose of a networking event is to “get working.” Networking events are about meeting new people, and continuing to develop relationships with people you have met at prior events. Even CMCP’s Corporate Connections, with the ultimate goal of generating business over time, is not designed to provide work on the spot. The purpose is to make an introduction. It is then up to the attorney to invest time and effort into building a relationship with a potential client. Another assumption is that we can evaluate people on the basis of one brief conversation. Given that we may only have a few minutes to talk to a new acquaintance, we aren’t likely to discover the richness of that person’s inner life, what motivates him or her, and how he or she is connected to various networks of people. Not everyone you meet will become a client, but many people can be a source of referrals, or may be willing to provide introductions to their contacts. Let me clarify that the initial “brief conversation” is not an opportunity to sell yourself or provide endless details about your practice. As fascinating as that might be, most people don’t want to hear that level of information in a networking setting. Instead, consider networking events as an opportunity to hone your listening skills and focus on the other person. The 80/20 rule applies here: spend 80% of your time listening and only 20% talking. If you are new to an association and haven’t attended multiple events, you won’t know whether the other attendees are regular members or are new themselves. You have to show up multiple times to form a sense of the community that exists in any association. In fact, I’ll suggest that until you become involved on a committee, you won’t really appreciate what the association and its members have to offer. To paraphrase John Lennon, the amount of benefit you receive is generally equal to the contribution you make. Networking Suggestions In addition to adjusting your assumptions about networking events, here are a few other suggestions for improving your experience of these events.
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Make a plan for attending events. If you are committed to building your business, you will want to create the largest network of contacts possible. Plan to meet at least two new people at every event. Over time, those people may also introduce you to their contacts. Engage in conversations. Even at a business-oriented event, most people won’t talk only about work. Be prepared to share your personal interests so that you find common ground with a new acquaintance. The more you know about your new contacts, the easier it will be to follow up with them. Join an association. Find an association that is meaningful to you and become an active member. CMCP is a perfect choice for any California attorney who is committed to diversity in the legal profession. The existing network continually expands to welcome new members, and there are many ways to contribute your time and talent. Follow up. Make a habit of following up with every new contact immediately after an event, and stay in touch regularly. It takes years to develop solid relationships. As I’ve said before, networking is about reciprocity. As often as possible, offer to introduce a new contact to members of your own network. As always, I’m happy to answer any questions you have about business development.
by Martha Sullivan, Principal of Thornton Marketing San Rafael, CA. firstname.lastname@example.org; 415.472.7126
CMCP Diversity Matters Los Angeles Meet the CMCP Board Reception CMCP members in southern California were given a wonderful opportunity to meet the Board and network with fellow members at the Wells Fargo History Museum in Downtown Los Angeles on May 19, 2014. Over 100 attendees were able to hear personal anecdotes about the value of CMCP from current members and how the organization has made a positive difference. Amidst the exhibits, CMCP members and their guests met with Board members, some of whom traveled down from the Bay Area to show their support and commitment to fostering diversity in the legal profession throughout California. Attendees from the Board included Deborah Broyles, Dale Lum, Anna Segobia Masters, Jordan Cohen, Laura Maechtlen, Jennifer Shigekawa, Maki Daijogo, David Michail, Dave Smith, Rocio Fierro, Jimmy Nguyen, Vanessa Washington, Audra Ibarra, Hyun Park, Garner Weng, John Yslas and Michael
Summer 2014 Newsletter
In addition to getting to know the Board members, the event offered a chance for CMCP members to network with themselves in a casual environment. Firm attorneys, in-house counsel, solo practitioners and legal vendors and recruiters all attended the event. Thanks to event sponsor Winston Strawn LLP and host Wells Fargo, over cocktails and catering from City Fare, attendees were able to get to know each other and build their professional networks. There was also ample opportunity to pose inside an original concord stagecoach and explore the other exhibits in the museum. CMCP members in Southern California who were unable to attend the event had another chance to meet members of the CMCP Board on Monday, July 28, 2014 at CMCPâ€™s Irvine 25th Anniversary Celebration at McCormick & Schmick's.
by Laju Obasaju, Associate, Rosenfeld, Meyer & Susman, LLP 15
CMCP Diversity Matters Event Recap: Screening of Walk the Walk
CMCP and Keker & Van Nest hosted and sponsored a screening of the documentary film, Walk the Walk, held at Keker & Van Nest's impressively renovated conference space in San Francisco on June 19, 2014. After a short reception, attendees viewed the half hour film written by appellate attorney AJ Kutchins and directed by award-winning film maker Abby Ginzberg. Designed to facilitate conversation about how to confront and overcome obstacles to creating a truly diverse work force, the film comprised a series of vignettes that depicted attorneys facing professional challenges based upon racial, ethnic, age, and gender-related biases. As the scenarios played out, viewers shared mostly common reactions to the various situations that were dramatized on screen. While certain moments drew understanding chuckles, some drew gasps of surprise or shock, and others were accompanied by resigned sighs.
Summer 2014 Newsletter
Keker & Van Nest attorney Khari Tillery, along with CMCP's Celeste Blancarte, moderated a discussion of the particular challenges and obstacles faced by the various characters in the film. Attendees discussed potential ways the characters might have handled the situations shown, and also the different challenges faced by law firm and in-house attorneys. John Keker, founding partner of Keker & Van Nest, and Garner K. Weng, a partner at Hanson Bridgett and member of the CMCP Board of Directors, participated in the discussion. AJ Kutchins spoke about the writing and filming process as he fielded questions and comments about the script. The majority of the event's 35 attendees came from law firms, with partners and associates represented about equally. Roughly a quarter of the attendees were from corporate legal departments. For more information on Walk the Walk, visit: www.abbyginzbergfilms.org
by Mala Sahai, Principal, Alchemy IP & Tech Counsel
CMCP Diversity Matters Announcing CMCP Members on Southern California
Rising Stars 2014
Congratulations to 146 CMCP minority member attorneys selected to Super Lawyersâ€™ Southern California 2014 Rising Stars list! Click here to see who made the list...
Summer 2014 Newsletter
September 10, 2014 5:30 PM - 7:30 PM OCLBA - Member Mixers Orange County Asian American Bar Association Costa Mesa. read more
September 11, 2014 6:00 PM - 7:00 PM CWL 40th Anniversary Annual Dinner & Silent Auction California Women Lawyers San Diego. read more
September 11-14, 2014 9/11-14/2014 The State Bar of California: 87th Annual Meeting The State Bar of California San Diego.
September 20, 2014 1:00 PM - 4:00 PM SABA: 7th Annual Diversity Law Student Reception The South Asian Bar Association Davis.
September 25, 2014 5:30 PM - 8:30 PM Queen’s Bench Annual Judge's Dinner Queen's Bench San Francisco. read more
September 26, 2014 6:00 PM - 9:00 PM Save the date: KABANC Annual Gala Korean American Bar Association of Northern California Palo Alto.
September 30, 2014 5:30 PM Annual Installation & Awards Dinner Beverly Hills Bar Association Beverly Hills.
October 29, 2014 6:00 PM Save the date: FBA/OC Annual Judge’s Night Federal Bar Association: Orange County Chapter Newport Beach.
November 12, 2014 6:00 PM - 8:00 PM Save the date: MBC 2014 Unity Awards Minority Bar Coalition BASF San Francisco.
September 26, 2014 6:30 PM - 9:00 PM Save the date: Installation & Awards Dinner Black Women Lawyers Association of LA Los Angeles.
October 23, 2014 6:00 PM - 9:00 PM The 2014 OCWLA Gala Orange County Women Lawyers Association Newport Beach. read more
CMCP Diversity Matters Summer 2014 Newsletter
ÂŠ Copyright 2014 California Minority Counsel Program 465 California Street, Suite 635 San Francisco, CA 94104 Tel: 415-782-8990 Email: email@example.com Web: http://www.cmcp.org
Published on Aug 21, 2014
The California Minority Counsel Program's 2014 Quarterly Newsletter - Summer 2014 Issue In this Issue: Welcome 2014 CMCP Newsletter Commit...