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CMCP Diversity Matters Summer 2017 Newsletter


Summer 2017

Summer 2017 Newsletter

2017 eNewsletter Committee Members

Cassandra Mougin

(Co-Chair) Deputy City Attorney San Diego Office of the City Attorney - Civil Division

Michael Chung

Of Counsel Willenken Wilson Loh & Delgado LLP

Sweta H. Patel

(Co-Chair) Counsel Davis Wright Tremaine LLP

Gagandeep Kaur Associate Reed Smith LLP

Partner Klein, Hockel, Iezza & Patel P.C.

Kelly Perigoe

David A. Shimkin

Julia Y. Trankiem

Member Cozen O’Connor

Jonathan Turner

Partner Mitchell Silberberg & Knupp LLP


Karen A. Henry

Partner Boies Schiller Flexner LLP

Partner Reed Smith LLP

Raffi Zerounian

Partner Hanson Bridgett LLP

CMCP Diversity Matters Table of Contents

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Letter From The Executive Director: How to Help CMCP Fix Diversity: A Reminder, an Appeal and a Huge Thank You

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Attorney Spotlight On Sandra Phillips Rogers Group Vice President, General Counsel and Chief Legal Officer Toyota Motor North America, Inc.

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In Matal v. Tam, SCOTUS Rules Prohibition on Disparaging Trademarks Unconstitutional

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DOL Withdraws Guidance Letters Leaving Employers To Pick Up the Pieces

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California Consumers and Food Manufacturers Await Key Government Rules on Food Labeling

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Attorney Spotlight On Sandra Williams Senior Vice President and Deputy General Counsel CBS Television - West Coast

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Business Development Series CMCP Blawg

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Diversity Calendar Mark Your Calendars for Upcoming Diversity Events


Summer 2017 Newsletter


How to Help CMCP Fix Diversity: A Reminder, an Appeal and a Huge Thank You Per statistics from National Association for Law Placement, Inc. (NALP), since 1993 (about the time some first-year associates were born), the number of minority partners has only gone from 2.55 percent to 8.05 percent in 2016, and the increase in minority partners since 2015 comes to 0.02 percent for women and 0.03 percent for men. Glaciers move faster than that.

Robert White CMCP Executive Director

I have three interconnected ideas on how we can move the needle on diversity and truly support what CMCP stands for. We can: (1) take an honest look at what it means to be involved in CMCP and how to truly support its mission; (2) measure actual achievement versus gestures; and (3) appreciate the people and actions which don’t receive awards but bring great value to the cause. I. Get Past Transactional Thinking On a call preparing for a GC panel at last year’s conference, the panelists rehearsed how they would address the business case for diversity. As they exchanged thoughts about the various economic and management benefits from having a diverse workforce and outside counsel, Mike Moye, General Counsel at Alameda Health System pointed out “we need to not forget that we should also be doing this because it’s the right thing to do.” That comment drew a thoughtful pause from the participants. The business case for diversity is only one basis for advocacy, as an article in Harvard Business Review notes: “One of the most compelling reasons for aspiring to workplace diversity is the self-evident social good it brings: fairness, opportunity, and a society that appreciates and enjoys its natural diversity rather than constantly struggling to accommodate and negotiate it.” As business attorneys we live in a highly transactional world. We negotiate allocations of risk and reward on behalf of clients, and wage battles in zerosum games of winner versus loser. We manage resources with an eye toward getting the highest possible return for our expenditures and investments. Meanwhile law firms and their attorneys are under intense pressure to bill time and bring in clients, while lawyers working in-house may feel the need to justify their diversity efforts with GCs or CEOs who may not feel the same fire about diversifying the profession.


CMCP Diversity Matters Our challenge and our opportunity as a community of lawyers and professionals committed to diversifying the profession is to balance being strategic with being altruistic, for example pursuing speaking and marketing opportunities but also pushing organizations toward active and on-going support. CMCP’s motto has been that we are not a “pay to play” organization where benefits flow in proportion to financial contributions. That is possible because our strongest supporters, the ones you see on our membership roster and every year as conference sponsors, have committed to a long-term relationship rather than seeking immediate gain. I recall one of those “whose turn is to pay?” conversations as I finished dinner with a close friend. After trying to calculate previous meals, expenses from vacations together and numerous other events, we concluded "let’s not worry about it," we’ll hang out together for many years and it will all balance out at the end. Like so many others, I’ve spoken on the business case for diversity and participated in many meetings “selling” CMCP membership and involvement to law firms and legal departments, as have many of CMCP’s supporters. It is important to do that. It’s also important that we demonstrate and advocate for selflessness and doing the right thing as a pillar of diversifying the legal profession. II. Value Doing Versus Being Seen I watched the movie Hidden Figures with a companion, enjoying the mostly untold story of the amazing black women who made the U.S.’s space ventures possible despite numerous barriers based on their race and gender. In one iconic scene, the head of NASA, having discovered the indignity and practical challenge faced by one of the black women, dramatically smashed the “Colored Ladies Room” bathroom sign with a crowbar as employees watched. The movie audience roared. My companion and I looked at each other – “why are they so excited?” “Oooh, they think this is real.” (Incidentally, as I learned later, that scene apparently was contrived by the filmmaker: when the real world math genius Katherine Johnson was asked if she used the "Colored" bathroom, she said “No, I just went in the white one.”) As one CMCP-er commented about her firm – “I wish we would stop winning these diversity awards because every time we do we lose motivation to actually do anything that would really have an impact.” As more effort is going into developing metrics for diversity, especially of law firms, we have increasing opportunity to see who is walking the walk. Many firms have signed on to Mansfield Rule initiatives to increase the diversity of their candidate pools for leadership positions, but that means nothing if they don’t actually hire and promote women and diverse attorneys. Continued on next page…


Summer 2017 Newsletter

So let’s not just watch on the hero swinging the crowbar as the music plays loudly, let’s focus on the person quietly doing what needs to be done, not to be heroic, not because she will get a diversity award, but because this is what is right for her and for her community. III. Service Above Self Every time I run the loop around Lake Merritt in Oakland (okay, mostly I walk, but I walk fast), I see this inscription in the pavement outside a former boathouse turned chic restaurant: “Service Above Self.” It’s a great message to reflect on as we ponder how to move forward with diversifying the legal profession. On the eve of our 28th Annual Business Conference, it has been great to hear the buzz about CMCP, often from attorneys who haven’t yet been to the conference but have heard about it and CMCP from our informal ambassadors who help spread the word about us. And of course the members of my Board and CMCP Ambassadors, including former Ambassadors, who have been charged with supporting CMCP but go beyond that in making connections and driving programs to bring more organizations and attorneys into the CMCP community. I’m very grateful for this level of support. I’m also reminded of something we don’t do enough – acknowledging the many quiet heroes who support CMCP and diversity work generally in so many ways. For fear of leaving out anyone, I won’t list them all by name, but just in the past months CMCP has been helped by volunteers and staff of host organizations doing the essential behind-thescenes work, attorneys at member firms who have referred other firms and companies to join CMCP, leaders at other diversity or affinity organizations who have partnered or promised to partner on programs and shared tips and resources. One young in-house attorney paid his own way to the Annual Business Conference so he could do Corporate Connections to benefit minority lawyers working in firms. These are the stories that should inspire and energize us. Of the many valuable sessions at the conference this year is “Giving Back While Saving Something for Self” aimed specifically at the many attorneys and professionals in the CMCP community who work on diversity committees, do pro bono and volunteer work, provide support to their families and communities where attorneys of color are rare, and do a million other things while still putting in the hard work of a business attorney. It’s one way for CMCP to support you, and thank you. I look forward to being in touch and continuing our great work together, Robert


CMCP Diversity Matters eNewsletter – Winter 2016 Issue

CMCP Diversity Matters


SANDRA PHILLIPS ROGERS Group Vice President, General Counsel and Chief Legal Officer Toyota Motor North America, Inc. By: Michael Chung, Of Counsel, Willenken Wilson Loh & Delgado LLP


andra Phillips Rogers seems to have had a dream career: partnership stints at Shook, Hardy & Bacon and Morgan, Lewis and Bockius; managing highprofile litigation matters for Pfizer and Toyota; and now serving as Group Vice President, General Counsel and Chief Legal Officer of Toyota Motor North America, Inc. But while Sandra admits that her career did not always follow the exact course she intended, none of it happened by accident either. In fact, Sandra, who majored in journalism at the University of Texas at Austin and considered a career in broadcast news, may never have even become a lawyer were it not for a dare from her sister who challenged her to go to law school.

Relationships Matter Relationships, both familial and professional, have played a central role in Sandra’s career. Growing up in Beaumont, Texas, Sandra’s mother exerted a tremendous influence on her life. Sandra’s mother

was a middle school and then a high school teacher who taught Sandra the value of hard work, resilience, and always doing your best. She led by example, going back to school in her late twenties to earn a bachelor’s degree and eventually a master’s in education. And it was from her grandfather that Sandra picked up her business acumen. An entrepreneur who did not go to college but nonetheless was able to start several successful businesses, Sandra’s grandfather taught her how to understand and read people. He also taught her the importance of forging your own path, which is why Sandra believes that “people who can invent themselves without a template are the wisest people.” Sandra credits various mentors with giving her the chance and opportunity to shine. Going in-house to Gulf Oil (which eventually merged with Chevron) Continued on next page…


Summer 2017 Newsletter

straight out of law school, Sandra was mentored by the late John Bailey, who headed litigation for the company. John gave Sandra a lot of confidence, telling her she could become anything she wanted – like a senator or a trial lawyer. Sandra chose the latter. Another mentor, Carla Herron, who brought Sandra to Shook, Hardy & Bacon, jump-started her career as a trial lawyer – giving her the opportunity to litigate high-profile mass tort and commercial litigation matters on behalf of major corporations. Carla was the one who also sponsored Sandra for partnership and sent Sandra work after moving in-house at Shell. The wisdom and guidance Sandra received from her family and professional mentors continues to resonate with Sandra to this day. That’s why she is so passionate about mentoring and makes a concerted effort to pass on that wisdom and guidance to the next generation of lawyers by mentoring students at her alma mater, The University of Texas School of Law.

“You Have to Be Intentional But Flexible About Your Career” While Sandra has achieved the professional goals she set out for herself, she also recognizes that being flexible and able to adjust to changing circumstances was one of the main reasons she was able to achieve her goals. She also credits the willingness to take risks as critical to her remarkable career success. In 2004, Sandra left Shook, Hardy & Bacon to go in-house at Pfizer as Chief Litigation Counsel. It was at Pfizer that Sandra realized that in-house practice was her true passion. She relished the marriage of law and business that the new position entailed and the opportunity to manage large teams of people appealed to her leadership, strategic thinking and team work skills. But being at Pfizer also meant leaving her native Texas for New York City. Eventually, the pull of


family proved too strong, and Sandra opted to leave Pfizer for her home state. But the timing was not right for another in-house position, so she joined Morgan, Lewis.

Better Never Best When It Comes to Diversity That opportunity came when Toyota was embroiled in its unintended acceleration class-action litigation. As a member of the outside counsel team handling the lawsuit, Sandra was invited to join Toyota inhouse once the litigation was over. Sandra says she is very privileged to have her current position because she is responsible for a very talented group of people. Sandra also believes that Toyota’s founding principles of respect for people and continuous improvement – as well as the CEO’s mantra of “Better Never Best” – should be applied not just to the cars Toyota manufactures, but also to the role diversity plays in the legal department. Sandra champions these values by promoting strong representation of diverse groups within her staff and among her outside counsel. Michael Chung is Of Counsel at Willenken Wilson Loh & Delgado, and Chair of Willenken’s Korea Practice Group. In this capacity, he represents Korean companies who become entangled in U.S. litigation. Michael has experience representing public and private companies, as well as executives of major Korean corporations, in all aspects of federal and state litigation, from inception to discovery and all the way through to trial. For more about Michael and his practice, Click Here.

CMCP Diversity Matters




he Asian American members of the band the Slants adopted that name to “reclaim” and “take ownership” of the derogatory term. The United States Patent and Trademark Office (“USPTO”) refused to register a trademark application for THE SLANTS filed by Simon Shiao Tam, the band’s lead singer, because the mark violated the Lanham Act’s disparagement clause. Tam appealed and finally prevailed before the Supreme Court of the United States in Matal v. Tam, 582 U.S. ___ (2017), which was announced on June 19, 2017. Continued on next page…


Summer 2017 Newsletter

In pushing to secure a trademark registration for “The Slants,” however, Tam opened the flood gates for hate speech in trademark registrations issued by the USPTO. Trademarks are indicators of source—including words, names, symbols, logos, smells, or sounds—that are capable of distinguishing a person’s goods or services from those of others. The main federal trademark statute is the Lanham Act, which was enacted in 1946 and amended several times since then. The Lanham Act, in addition to prohibiting trademark infringement, trademark dilution, and false advertisement, also governs registration of trademarks with the USPTO. Under the Lanham Act, trademarks that have been used in U.S. commerce are eligible for registration on the USPTO’s federal register. Trademarks that consist of descriptive terms may be placed on the USPTO’s supplemental register. Common law trademark rights are created through use of a mark in U.S. commerce, and federal registration is not necessary to enforce common law trademark rights in federal court or use the ™ symbol. Nevertheless, owning a federal trademark registration on the USPTO’s principal register does provide significant benefits, including that the registration: serves as constructive notice of the registrant’s claim of


ownership in a mark; “is ‘prima facie evidence of the validity of the registered mark and of the registration of the mark, of the owner’s ownership of the mark, and of the owner’s exclusive right to use the registered mark in commerce on or in connection with the goods or services specified in the certificate’” (citing B & B Hardware, Inc. v. Hargis Industries, Inc., 575 U.S. ___, at __ (2015) (slip op., at 3) (quoting §1057(b)); may become “incontestable” upon the fifth anniversary of the registration of the trademark; and enables the registrant to stop the importation into the United States of goods bearing an infringing mark. Also, the registered trademark symbol ® cannot be used without a federal registration (although owners of unregistered marks can use the ™ symbol).

that may be disparaging to a substantial composite of the referenced group” taking into context “contemporary attitudes.” Trademark Manual of Examining Procedure §1203.03(b)(i) (Apr. 2017). After the USPTO examining attorney assigned to an application had found that a prima facie case of disparagement existed, trademark applicants were given an opportunity to present argument as to why the appliedfor mark was not disparaging. Nevertheless, the trademark manual was clear that “[t] he fact that an applicant may be a member of that group [being disparaged] or has good intentions underlying it use of the term does not obviate the fact that a substantial composite of the referenced group would find the term objectionable.” Id.

The Lanham Act prohibits the registration of certain categories of trademarks. Notably, for seventy years, the “disparagement clause” of the Lanham Act has barred the registration of a trademark “which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute.” 15 U.S.C. §1052(a). The policy of the USPTO had been to refuse registration of trademark applications that contained matter that was “found to refer to identifiable persons, institutions, beliefs or national symbols” that had a “meaning

Approximately seven years ago, Tam filed a trademark application for THE SLANTS for “Entertainment, namely, live performances by a musical band.” That application was refused registration by the USPTO examining attorney assigned to the trademark application because the derogatory term in the mark violated the disparagement clause contained in Section 2(a) of the Lanham Act. See 15 U.S.C. §1052(a). Tam appealed to the USPTO’s Trademark Trial and Appeal Board, which affirmed the examining attorney’s decision. Tam appealed, and an en banc

CMCP Diversity Matters eNewsletter – Winter 2016 Issue

panel of the Court of Appeals for the Federal Circuit ultimately ruled that the disparagement clause violated the First Amendment. The Supreme Court of the United States unanimously affirmed the Federal Circuit’s decision. Justice Alito announced the judgment of the Court, and delivered the opinion with respect to Parts I, II, and III-A, in which all justices joined (except Justice Thomas did not join in Part II, and Justice Gorsuch took no part in the decision). The Supreme Court ruled that the content of trademarks registered by the USPTO does not constitute government speech. The Court reasoned that the Federal Government has no role in developing or editing the content of trademarks in trademark applications, and the examining attorneys assigned to review trademark applications do not inquire whether a trademark is consistent with any government policy. The Court explained that if registered trademarks constitute government speech, then “the Federal Government is babbling prodigiously and incoherently.” The Court distinguished case law finding specialty license plates to be government speech by noting that the States have used license plates to convey messages, license plates operate as a form of government identification, license plates are “closely identified in the public mind” with the government, and the States

CMCP Diversity Matters

often maintain direct control over the content of license plates.

violates the First Amendment’s Free Speech Clause.

The Court also rejected the Government’s reliance on cases upholding the constitutionality of government programs that subsidized speech expressing a particular viewpoint. The Court held that these cases were distinguishable because they involved government payments or benefits, and concluded that trademark registration does not provide analogous benefits. Rather, registering trademarks is akin to the benefits that everyone receives, like police and fire protection.

Under Tam, trademark applications that contain terms that disparage racial or ethnic groups will no longer be refused registration under the Lanham Act’s disparagement clause, regardless of the intent of the applicant. In other words, trademarks containing hate speech, including racial epithets, are now eligible to receive federal trademark registrations issued by the USPTO. The greatest beneficiary of the Court’s decision in Tam may not be the Slants but rather the owners of sports teams that have derogatory team names like the Washington Redskins. That football team, which has been in a decades-long legal battle regarding whether its team name is disparaging to Native Americans, is almost certain to prevail in those proceedings given the Supreme Court’s announcement that the Lanham Act’s disparagement clause is unconstitutional.

The Court declined to rule on whether trademarks are commercial speech subject to relaxed scrutiny under Central Hudson Gas. & Elect. v. Public Serv. Comm’n of N.Y., 447 U.S. 557 (1980), which held that any restriction of speech must serve a “substantial interest” that is “narrowly drawn.” Rather, the Court ruled that the Lanham Act’s disparagement clause fails the Central Hudson standard because it is not “‘narrowly drawn’ to drive out trademarks that support invidious discrimination.” The Court found that the disparagement clause “is a happy-talk clause,” since it would on its face apply to trademarks such as “’Down with racists,’ ‘Down with sexists,’ ‘Down with homophobes.’” Accordingly, the Court held that the Lanham Act’s disparagement clause

Raffi Zerounian is a Partner at Hanson Bridgett LLP in San Francisco. Raffi specializes in intellectual property and commercial litigation, with an emphasis on trademark and copyright litigation. For more on Raffi and his practice click here.


Summer 2017 Newsletter



CMCP Diversity Matters


n June 7, 2017, the U.S. Secretary of Labor Alexander Acosta announced the withdrawal of the U.S. Department of Labor’s (“DOL”) guidance on independent contractors and joint employment issued during the Obama administration, without issuing replacement guidance. Although the DOL offered no explanation for its decision, the move signaled that, under the Trump administration, the DOL may take a more employer-friendly approach when investigating these issues. At the moment this is simply an expectation and will not serve as a defense before the DOL or in litigation. So how do employers protect themselves? Unfortunately, there is no foolproof answer. The best defense is knowledge. Employers should understand the DOL’s position in the withdrawn guidance, the DOL’s position pre-guidance (likely the DOL’s current position) and how the absence of the guidance may impact judicial decisions. In July 2015, employers began scrambling to ensure they were properly classifying workers when the DOL issued guidance, declaring that “most workers are employees under the FLSA [Fair Labor Standards Act],” rather than independent contractors. In line with this position, the DOL set forth a multi-factor “economic realities” test with a focus on whether a worker was economically dependent on the employer or was in business for himself or herself. The DOL issued additional guidance in January 2016 explaining its broad interpretation of joint employment. According to the DOL, joint employer liability did not require “direct control.” The DOL explained that “indirect control” was sufficient because “[t]he concept of joint employment, like employment generally, should be defined expansively under the FLSA.”

While these guidance letters were not binding, they provided a strong indication of how the DOL would interpret the FLSA in enforcement actions. Furthermore, courts often rely on the DOL’s interpretation to resolve these issues, especially since the FLSA does not set forth welldefined tests for determining when employers can classify a worker as an independent contractor versus an employee or when a joint employment relationship exists. Absent replacement guidance, the DOL and courts are expected to revert to the preguidance tests. The independent contractor test will no longer start with the presumption that all workers are employees. Pre-guidance, the “economic realities” test for determining whether a worker is an employee or independent contractor focused on a business’s control over the worker, rather than the worker’s economical dependence on the business. Generally, this pre-guidance test includes some combination of the following factors: • • • • • •

The degree of the employer’s right to control the manner in which work is performed; The degree of skill required to perform the work; The worker’s opportunity for profit or loss; The duration of the working relationship; The worker’s opportunity for profit or loss; and The extent to which the work is an integral part of the business.

Some courts choose to add factors to the test and/or put greater weight on certain factors, Continued on next page…


Summer 2017 Newsletter

while other courts apply a different test all together. Employers should start by analyzing these basic factors. If an employer believes a worker is an independent contractor based on these basic factors, then it should dig further by looking at the factors considered by federal judicial circuits where it has business operations. The varying tests leave employers with the difficult task of monitoring court decisions in all jurisdictions where they operate, especially in the absence of replacement guidance from the DOL. As for joint employer liability, it is expected that the DOL will return to requiring “direct control” (i.e. hiring and firing, scheduling, and determining compensation) over the worker. In determining whether entities are joint employers for purposes of the FLSA, the various federal judicial circuits use different tests. Many circuits consider the following four factors to some degree in determining whether an entity is a joint employer: power to hire/fire, supervision and control over work schedules or conditions of employment, rate and method of pay, and maintenance of personnel records. Despite the varying tests, courts agree that the inquiry is a flexible one and each factor does not need to be met. Although guidance from the DOL would allow employers to focus on a single test rather than trying to balance the various tests used by federal judicial circuits, the DOL under the Trump administration is unlikely to issue new guidance letters. Instead, the DOL is expected to issue opinion letters now (as of June 27, 2017) that it has reinstated this long-standing practice. Unlike an informal guidance letter, “[a] n opinion letter is an official, written opinion by the Wage and Hour Division of how a particular


law applies in specific circumstances presented by an employer, employee or other entity requesting the opinion.” (DOL News Release, US Department of Labor Reinstates Wage and Hour Opinion Letters (6/27/27), https://www.dol. gov/newsroom/releases/whd/whd20170627.) Importantly, employers may rely on an opinion letter to establish a good-faith defense in wage and hour litigation. The withdrawal of the employee-friendly guidance letters does not necessarily mean the law now favors employers. As if this was not complicated enough, a worker may be an independent contractor under the relevant federal circuit court’s test, and an employee under state law because the FLSA is not always consistent with state legislation. So employers must ask how the DOL, federal courts and state courts would perceive the worker and/or entity’s role in the worker’s employment. With no bright line rules in place, and without guidance from the DOL, employers must keep their guard up. The legal information provided in this article is general in nature and should not be construed as advice applicable to any particular individual, entity or situation. Except as otherwise noted, the views expressed in this article are those of the author(s). Sweta Patel is a Partner at Klein, Hockel, Iezza, & Patel, PC, who focuses her practice on labor and employment and pharmacy law. Sweta also represents businesses in a variety of general commercial litigation matters, including lease disputes and breach of contract claims. For more info on Sweta and her practice, Click Here.

CMCP Diversity Matters eNewsletter – Winter 2016 Issue

CMCP Diversity Matters

By: David A. Shimkin, Member, Cozen O'Connor


he Food and Drug Administration (FDA) and the United States Department of Agriculture (USDA) are expected to soon issue new regulations regarding the advertising and labeling of food products. California manufacturers will have to make sure that they not only do not

run afoul of those new rules, but that they comply with California’s strict false advertising law. The FDA’s reconsideration of the definition of “healthy” came about after it sent the KIND company a warning letter in 2015 for its use of the word “healthy” on its nutritional bars, which

happen to contain nuts. KIND objected to the warning letter by stating that the FDA’s definition of “healthy” is outdated and that its products do not meet that definition only because they contain nuts, which are generally regarded as healthy. The FDA then agreed to revisit its definition of “healthy” and to delay enforcement under the old definition. (Unfortunately for KIND, however, the FDA letter precipitated the filing of three separate class action suits based on the claim that KIND was violating the FDA’s “healthy standard.”). Continued on next page…


Summer 2017 Newsletter

The FDA currently permits the use of “healthy” in labeling depending on the proportions of fat, sodium, cholesterol and beneficial nutrients in a product. Although manufacturers, dieticians, consumer advocacy groups, and even the FDA all seem to agree that the current definition and regulation of the word “healthy” in labeling is outdated,1 what it should be remains open to debate. For instance, should “healthy” be a nutrient componentbased description or a food component-based claim? Should calories matter? Should products that include any added sugar be excluded from the “healthy” ambit? Food industry observers await the FDA’s clarification of this and of the term “all natural.” Indeed, the fate of countless false labeling claims hangs in the balance, as most courts, especially in the Northern District of California (also known as the “Food Court”) have stayed cases involving false claims of “all-natural” in anticipation of the FDA issuing a definition of that term.2

According to the FDA, 77% of U.S. adults reported using the Nutrition Facts label always, most of the time, or sometimes when buying a food product.3 Most recently, the FDA announced that it will delay implementation of the requirement that food manufacturers use a revamped Nutrition Facts label. That new label will change how certain nutrition components, such as sugar, fiber and vitamins are presented, and was to be required for manufacturers with annual sales of more than $10 million by June 26, 2018. However, many manufacturers expressed concern about the deadline given that the USDA is expected to soon issue new labeling requirements for genetically modified organism (GMO) products.

that is untrue or misleading, and that is known, or by the exercise of reasonable care should be known, to be untrue or misleading. A statement is “untrue or misleading” under the False Advertising Law if “members of the public [are] likely to be deceived by the advertising.” In re Vioxx Class Cases, 180 Cal. App. 4th 116, 120 (2009). This standard covers not only statements that are false, but statements “which, although true, [are] either misleading or which ha[ve] a capacity, likelihood or tendency to deceive or confuse the public.” Cullen v. Netflix, Inc., 880 F. Supp. 2d 1017, 1025-26 (N.D. Cal. 2012). In applying this standard, courts consider whether a reasonable consumer is likely to be deceived. In re Vioxx Class Cases, 180 Cal. App. 4th at 130.

In California, manufacturers also have to contend with perhaps the strictest false-advertising statute in the country, the California False Advertising Law. This law prohibits companies from making any statement

However, an advertisement that is not literally true will not incur liability if it qualifies as “mere puffery.” For example, claims “that a computer is ‘ultrareliable’ or ‘packed with power’ say nothing about the specific

1 Gasparro, Annie. "FDA Seeks to Redefine ‘Healthy’." The Wall Street Journal, May 10, 2016. Accessed July 17, 2017. https://www.wsj. com/articles/fda-seeks-to-redefine-healthy-1462872601. 2 In at least one case, a judge has decided not to wait—certifying a class-action lawsuit regarding the allegedly misleading advertisement of cheese. See Morales et al v. Kraft Foods Group, Inc. et al., No. 2:14-CV-04387 (C.D. Cal.). 3 Lin, Chung-Tung Jordan, Zhang, Yuanting, Carlton, Ewa D., Lo, Serena C., “2014 FDA Health and Diet Survey,” Center for Food Safety and Applied Nutrition Food and Drug Administration, May 6, 2016, consumerbehaviorresearch/ucm497251.pdf. (July 16, 2017).


CMCP Diversity Matters

characteristics or components of the computer” and merely constitute non-actionable puffery. Elias v. Hewlett-Packard Co., 903 F. Supp. 2d 843, 855 (N.D. Cal. 2012). Similarly, a fast-food restaurant would not be liable under the False Advertising Law for boasting of its “highquality ingredients, innovative recipes, and time-tested cooking methods” because such statements constitute nonspecific puffery that is unlikely to deceive or mislead a reasonable consumer. Fraker v. KFC Corp., 06-CV-01284JMWMC, 2007 WL 1296571 (S.D. Cal. Apr. 30, 2007). Misleading food labeling can also be considered a violation of Section 17200 of California’s Business and Professions Code, which prohibits any “unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.” Additionally, plaintiffs typically bring false food labeling claims under the Consumers Legal Remedies Act, California Civil Code sections 1750 through 1784 (“CLRA”), and every State, as well as the Federal government (through the Lanham Act) has prohibited false advertising. This means, of course, that there is a real possibility in any jurisdiction that a jury could find a marketing statement to be misleading.

For example, in 2010, a Federal jury in Los Angeles found that juice maker Welch’s violated the Lanham Act by intentionally misleading consumers with false and deceptive labeling by saying that its juice was a “100% Juice White Grape Pomegranate” product. In reality, each 64 ounce bottle contains over 63 ounces of apple and white grape filler juices, plus additional color and flavor enhancers. Less than a single ounce per bottle is actually pomegranate juice. During the trial, competitor POM Wonderful successfully argued that the product’s labeling, which features large, prominently placed images of pomegranates on the front label, was intentionally designed to mislead consumers into believing the product contained a substantial quantity of pomegranate juice. (In an interesting side note, however, the jury found that POM was not injured by the alleged deception). Updating the definitions of “healthy” and “natural” could have a profound effect on the food industry, especially regarding GMOs. Industry groups are already advocating for what might qualify as “healthy” or “natural” under the new yet-to-be-issued guidelines. The International Tree Nut Council Nutrition Research & Education Foundation has

asked the FDA for permission to use qualified health claims for nuts and heart disease and to categorize Brazil nuts, cashews, and macadamias as “healthy.” The Egg Nutrition Center has proposed to the FDA that eggs, a high protein, nutrient dense food, be listed as “healthy” under any new criteria. Regardless of what the FDA chooses to include in its definitions, its rulings will directly impact how manufacturers advertise. Companies will need to make sure that they are not only in compliance with any new FDA guidelines, but that they remain in compliance with all State and Federal false labeling and advertising laws, especially in a consumer-savvy venue like California. David A. Shimkin is a member of Cozen O’Connor in Los Angeles, and practices in the firm’s Commercial Litigation Group. His litigation practice includes complex commercial matters, with a focus on representing clients in the hospitality, transportation, construction, and real estate fields. For more info on David and his practice, Click Here.


Summer 2017 Newsletter


SANDRA K. WILLIAMS Senior Vice President and Deputy General Counsel, West Coast CBS Television By: Michael Chung, Of Counsel, Willenken Wilson Loh & Delgado LLP


ne takeaway from Sandra Williams’ 39-year legal career may be that women and minority attorneys must take the initiative in shaping and creating their own careers. That is precisely what Sandra has done and which has led to her current position as Senior Vice President and Deputy General Counsel for the West Coast at CBS Television. Sandra’s career is a testament to the fact that with hard work and a commitment to excellence in one’s practice, there will be opportunities to work in the areas one chooses.

Seizing Opportunities Raised in Houston, Texas, Sandra’s path to law school did not begin until she moved to the East Coast where she attended college at Smith College. It was a Constitutional Law class that she took there which sparked her interest in going to law school. The particular professor who taught her then was very engaging and the Constitutional Law class ended up being one of Sandra’s favorites in college. From Smith, Sandra went on to law school at the University of Michigan. Law school was quite different from the Constitutional Law class Sandra took in college and like most law students, Sandra found the law school experience to be tough and demanding. Compounding the problem was the fact that unlike today, where women make up just over 50 percent of law students at accredited law schools in the U.S., the demographics of law schools in the late seventies was still overwhelmingly male and still overwhelmingly dominated by Caucasians. The faculty also reflected this lack of diversity and Sandra did not have a single woman law professor during her three years at Michigan. Moreover, Sandra was also a first-generation attorney and did not have the benefit of parents, aunts or uncles to guide her along her career in law. Nevertheless, Sandra was able to find opportunities in the legal fields she was interested in most after graduation.


CMCP Diversity Matters eNewsletter – Winter 2016 Issue

CMCP Diversity Matters

From Practicing Labor Law in DC to Entertainment Law in LA The lack of diversity in academia was magnified at law firms in the seventies. At the time, the ranks of law firm associates was very homogenous and it was unheard of for a woman or a minority to become a law firm partner. The lack of inclusion at law firms was a major reason why Sandra decided not to begin her career there, as the law firm environment seemed like an unwelcoming place for her. Instead, Sandra opted to enter the public sector. Being a union-side labor attorney had been a goal of Sandra’s in law school. As such, Sandra decided to begin her legal career at the one place that would provide the greatest exposure to the labor issues of the day, the National Labor Relations Board (NLRB) in Washington, D.C. Sandra hit the ground running at her first job straight out of law school and began her career in an enviable fashion. She was an appellate lawyer for the NLRB and was given substantial responsibilities. One of the more memorable assignments Sandra handled at the beginning of her career was arguing an appeal before the Second Circuit eight months after graduating from Michigan. Sandra stayed in D.C. for three years before she decided to move to the Los Angeles Office of the NLRB. She would stay at the NLRB for another year before seizing an opportunity to move in-house to CBS Television when one of her NLRB colleagues, an attorney of color, alerted her to an opportunity there. Sandra jumped at the chance and joined the legal department of CBS Television in 1982. She would handle labor issues for CBS for the next seven years.

“Attorneys of Color Must Prove Their Competence” It is not surprising that Sandra became interested in entertainment law while working at CBS and she eventually got to join the transactional group, when a woman attorney in that group saw Sandra’s potential and helped her get a position there. Sandra says she will always be grateful to that attorney and that she learned a lot of management skills from her. Sandra recognizes that she has been fortunate to have worked in an environment like CBS Television, which has afforded her opportunities to grow and gain management responsibilities. In addition, she has seen the company become more reflective of American society, as not only has her legal department become more inclusive but also the management ranks at CBS have also become more diverse. But Sandra recognizes that the legal profession still has a ways to go. She recognizes that for attorneys of color, competence is not presumed and that minority attorneys must prove their competence much more so than non-minority attorneys. Nevertheless, Sandra believes that this state of affairs is not something to despair, but an opportunity to demonstrate excellence on a consistent basis. Michael Chung is Of Counsel at Willenken Wilson Loh & Delgado, and Chair of Willenken’s Korea Practice Group. In this capacity, he represents Korean companies who become entangled in U.S. litigation. Michael has experience representing public and private companies, as well as executives of major Korean corporations, in all aspects of federal and state litigation, from inception to discovery and all the way through to trial. For more about Michael and his practice, Click Here.


Summer 2017 Newsletter

Business Development Series:


Blawg Time for an Empathy Adjustment


could blame the hot weather for making me cranky, but I think it’s something else. I’ve had too many conversations with lawyers this year about the difficulties of being heard, being acknowledged, and being fairly compensated. Even for my coaching clients who are succeeding at their business development efforts, there is a sense that the game is, if not rigged against them, not set up to benefit them equally. This reminds me of many conversations I had with my dad, who often said, “Whoever said life is fair?” Although he recognized the unfairness of life, he deserves credit for hiring and promoting women and minorities in the 1960’s, long before diversity initiatives and talk of unconscious bias.

By: Martha Sullivan, Principal, Thornton Marketing

“At a moderated discussion in April (2017) between Ellen Pao and Anita Hill, the law professor whose sexual harassment testimony was hailed as a turning point for women 26 years ago, the audience was asked to raise their hands if they'd been sexually harassed at work or knew someone who had. Nearly every hand went up among more than 1,500 attendees.” In case you think this is an anomaly, I ask the same question about harassment whenever I teach an Unconscious Bias workshop. Almost every woman raises her hand. The men in the audience are surprised to learn that their colleagues have been harassed. Some are unaware that they have been the perpetrators of the harassment. The conversation may have started 26 years ago, but it is far from over.

Micro-Aggression or “Normal” Behavior?

The Role of Leaders

Given the number of examples I hear about inappropriate behaviors, I’m wondering when a micro-aggression can be reclassified as everyday bad behavior. The following example is from the tech industry, where more women are speaking up about harassment. Unfortunately, this experience is common across most, if not all, industries. In an article that appeared in Bloomberg Gadfly, “Brave Women in Tech Can’t Weed Out Misconduct Alone,” Shira Ovide wrote:

At the beginning of her article, Ovide writes about all of the brave women in the tech industry who have been speaking up about harassment, and asks “But do the people with the least power have to shoulder responsibility for weeding out misconduct by people with the most?”


The answer, for the moment, may be yes. The most powerful leaders are unlikely to have enough empathy

CMCP Diversity Matters to recognize the problem and take action. In his “Power Causes Brain Damage” article in the July/ August issue of The Atlantic, Jerry Useem writes about lab and field experiments conducted by Dacher Keltner at UC Berkeley. Keltner found that people who had been in positions of power “acted as if they had suffered a traumatic brain injury – becoming more impulsive, less risk-aware, and, crucially, less adept at seeing things from other people’s point of view.” The Atlantic article goes on to say that as leaders become more powerful and spend more time in positions of power, they are “less able to make out people’s individuating traits” and they “rely more heavily on stereotype.” This tendency to see stereotypes instead of individuals allows leaders to pretend that their organizations are meritocracies and that their performance review processes are fair and balanced. Their own “confirmation bias” plays a significant role in how they assess the skills and the long-term potential of their employees. If a leader can only see people as stereotypes, he or she is much less likely to take action to correct or prevent bad behavior at every level of an organization.

The Path Forward Begins With Empathy We need leaders who have high levels of emotional intelligence (EQ). One of the key components of EQ is empathy, the ability to see things from another person’s point of view. We have to remember that words convey only about 10% of our communication, while 90% of the emotional content is conveyed by nonverbal cues. It requires self-awareness to read body language, facial expressions and tone of voice in order to sense emotional states in others. Paying attention to nonverbal cues helps us understand what a colleague might be feeling or how he or she would interpret a conversation. Although it might sound daunting to acquire this skill, academically intelligent people can learn to become more empathic and emotionally intelligent.

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.


Summer 2017 Newsletter


August 16, 2017

August 17, 2017

August 17, 2017

Morning at the Beach

Barristers Summer Social

AABA CRC Social Justice Mixer

The Annual End of Summer Mixer

Los Angeles County Bar Association

Asian American Bar Association of the Greater Bay Area

Hispanic Bar Association of Orange County

9:00am - 1:00pm

6:00pm - 9:00pm

Black Women Lawyers Association of LA Annenberg Community Beach House (Canopy Area) - Santa Monica

Canon Terrace @ Montage Beverly Hills - Beverly Hills

6:00pm - 8:00pm

Farella Braun + Martel LLP San Francisco

5:30pm - 8:00pm

Hector’s On Broadway Santa Ana

August 26, 2017

September 7, 2017

September 8, 2017

September 14, 2017


KABA-SD Tenth Annual Dinner

2017 KABANC Annual GALA


Filipino American Lawyers of San Diego

Korean American Bar Association of San Diego

Orange County Women Lawyers Association

Nobel Athletic Fields San Diego

Coronado Community Center - Coronado

Korean American Bar Association of Northern California

September 26, 2017

September 28, 2017

October 5, 2017

October 7, 2017

2017 Installation & Awards Dinner

Justice & Diversity Center's Annual GALA

CWL 43rd Annual Dinner and Silent Auction

SF Fleet Week Picnic

Four Seasons Hotel - Los Angeles

The Bar Association of San Francisco

California Women Lawyers

TBD - San Francisco

October 12, 2017

October 19, 2017

October 20, 2017

November 14, 2017

Burnham Brown's 7th Annual Women's Diversity Event

WLAC Annual Judge's Dinner

La Raza Lawyers Charitable Foundation Scholarship Dinner 2017

Annual MBC Unity Awards

11:30am - 2:30pm

5:30pm - 8:30pm


6:00pm - 9:00pm

Beverly Hills Bar Association

The Bently Reserve San Francisco

5:00pm - 8:00pm

6:00pm - 9:00pm

Burnham Brown

Women Lawyers of Alameda County

OMCA - Oakland


6:00pm - 9:00pm

San Francisco Marriott Marquis - San Francisco

5:30pm - 9:00pm

Grand Hyatt San Francisco Union Square - San Francisco


Santa Clara County La Raza Lawyers Association TBD


6:00pm - 9:00pm

The Resort At Pelican Hill Newport Coast

1:00pm - 4:00pm

San Francisco La Raza Lawyers Association

6:00pm - 9:00pm

Minority Bar Coalition UC Hastings College of the Law - San Francisco

CMCP Diversity Matters

CMCP Diversity Matters

CMCP Diversity Matters eNewsletter – Winter 2016 Issue

Summer 2017 Newsletter


Summer 2017

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CMCP Diversity Matters - Summer 2017  
CMCP Diversity Matters - Summer 2017  

California Minority Counsel Program Diversity Matters eNewsletter Summer 2017 Issue