Fair Use of Photographs: Using Photos Found On Google Images

U.S. Court of Appeals Decides “Fair Use” of Photographs

The United States Court of Appeals for the Eleventh Circuit (Georgia, Florida and Alabama) decided a case on September 17 involving the “fair use” of a photograph obtained over the internet. Katz v. Google, 2015 U. S. Appeal LEXIS 16546 (11th Cir. 2015).

Raanan Katz is a minority owner of the Miami Heat basketball team and a commercial real estate tycoon. On a visit to Israel, a newspaper there took a candid photograph of Katz that showed his face contorted and his tongue sticking out.

A tenant in one of Katz’s shopping centers started a blog campaign critical of Katz’s business practices. She found the unflattering photograph through a Google search, and started including it as a part of her blogs criticizing Mr. Katz.

Mr. Katz contacted the newspaper in Israel and purchased the copyright to the photograph, and sued the tenant for copyright infringement for posting the photograph without permission. She defended on the basis of fair use.

The Court of Appeals held that the tenant’s use of the photograph was in fact “fair use” and upheld the dismissal of Katz’s copyright claims.

The facts supporting fair use were these:

  • The use of the photograph in the blogs was primarily educational rather than commercial – a part of criticism and commentary.
  • The use of the photograph was transformative in that it was in conjunction with a new meaning, message or expression compared to its original use. The use by the tenant in the blogs was for purposes of ridicule and satire.
  • The original use and publication of the photograph occurred prior to the tenant’s posting on the blogs.
  • While photographs are entitled to copyright protection, this photograph was primarily a factual work and not one that involved subjective and artistic judgment.
  • The use of the photograph did not materially impact the market that Katz would have had for the photograph in question.

This opinion by the Eleventh Circuit supports the practice of blogs, newspapers and publications that locate and use photographs of individuals for purposes of illustrating news and commentary. For example, while Herschel Walker has the exclusive right to promote and market his name, image and likeness, and while a photographer of a picture of Walker would hold a copyright to the photograph, a blog or newspaper could as “fair use” publish a photograph of Walker in conjunction with a news article or commentary concerning Mr. Walker.

But, fair use of a photograph in conjunction with commentary, satire or reporting does not extend to an unauthorized commercial use for advertising, marketing or merchandising.

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Four Tips to Start-Up Companies for Avoiding Trademark Pitfalls

In the early stages of start-up companies, generally protection of intellectual property rights is not a priority—whether it be from oversight or as a result of tight finances. Understandably, the leadership of start-ups primarily focuses on funding, organization, strategy, growth, talent, and marketing. Whatever the reason, neglecting to protect a start-up’s intellectual property at the inception of the company can be devastating in the long run.

Fortunately, with a little research and a reasonable cash outlay, companies can avoid many intellectual property pitfalls. Here are four tips that start-up companies should follow:

Tip 1: Not Already in Use

The business name is a critical factor in establishing and maintaining a brand to be protected by state and federal trademark law throughout the life of the business. One major stumbling block to a successful start-up is selecting a company name that is identical or similar to a name that is already in use. Remember, someone in a neighboring city, county, or state may have come up with a similar name. This problem can be avoided entirely with some preliminary research.

From the onset, the business should also decide if it will operate under a trade name. A trade name is the official name under which a company does business. It is also known as a “doing business as” name, assumed name, or fictitious name. For example, the name of a start-up company might be Robertson, Inc., but the company may decide to open all of its offices under the name “Robertson’s Rentals.”   As with the business name, it is important to select a trade name that is not already in use in order to receive maximum protection under federal and state trademark laws.

Start by researching the business name AND the trade name with the Secretary of State. The Secretary of State holds a database of registered domestic and foreign businesses and most can be searched online (Georgia and South Carolina). It is recommended to search the databases of all states in which the new company plans to do business. After searching the Secretary of State database for registered names, the start-up will need to search for registered trade names (not business names) in the records of the Clerk of the Court of General Jurisdiction in the county containing the principal place of business. While this type of search is not online, it can still be performed with relative ease.

Note: In your business formation process, contact a trademark attorney to register the trade name or fictitious name should you decide to utilize one. Luckily, registering a trade name is generally an inexpensive pursuit, especially in Georgia or South Carolina.

Tip 2: Does Not Run Afoul of Existing State or Federal Trademarks

Another consideration in choosing how to name the business is selecting a company name that is not identical or similar to a registered state or federal trademark. This is separate from a Secretary of State search or a county trade name search. A start-up should also exercise the same caution when naming products or services. Trademark rights are generally based on the principle that the first person or entity to use a mark has priority, whether trademarked or not. A trademark does not necessarily need to be registered in order to have priority. Therefore, if a start-up chooses a company name, product name, service name, or slogan that is already in use by another company, the start-up runs the risk of exposing itself to costly litigation, otherwise known as infringement.

Search the Trademark Electronic Search System (“TESS”) on the website for the United States Patent and Trademark Office (“USPTO”). Also, some Secretary of State websites have the capacity to search registered state trademarks. Finally, searching Google, Bing and Yahoo will also help a start-up in deciding a name.

Tip 3: Not Already an Existing URL

When choosing a company name, product name, service name, or slogan, a start-up should perform an online search to find out what URLs have been secured. Companies often overlook that website addresses are a form of intellectual property. Registering a domain name costs merely a few dollars, so a start-up should be sure to register a domain name that would not be easily confused with other businesses. Searching Google, Bing, and Yahoo is generally all that is needed to be sure that no identical or similar domain names are already in existence.

Tip 4: Plan in the Early Stages of the Start-up

While intellectual property registration should be sought as soon as the start-up can afford it, companies justifiably spend their limited budgets on strategy, growth, talent, and marketing. Thus, it is important that a start-up strategically plan to protect its intellectual property. As the company generates revenue, funds should be earmarked for intellectual property protections. A start-up should retain a trademark attorney for help in performing a full trademark search, filing a trademark, and executing other necessary legal actions to protect its intellectual property. A start-up should also police its intellectual property—meaning that the company should ensure that others are not making use of its marks without permission. If someone steals intellectual property, the start-up should retain counsel to send cease-and-desist letters and file infringement suits if need be. After the start-up has worked so hard to foster and hone its intellectual property, it should protect it.

Why Start-Ups Should Follow These Steps?

Following these four tips will provide a start-up with protection against the copying, theft, and illegal use of its marks. Additionally, the start-up will be protected from infringement litigation from other established businesses for intentional or unintentional use of their marks. Finally, seeking financing for the start-up will be easier because a start-up with protected intellectual property rights will gain improved attractiveness to investors. Starting a business with an intellectual property strategy is key to the success of the business.

Check out our other links for more information about copyrights and trademarks.

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Military Lending Act: Protecting Military Service Members

The Problem – Lending Practices That Prey on Military Service Members:

“Holly Petraeus, Consumer Financial Protection Bureau Assistant Director, Office of Servicemember Affairs, issued the following statement:

‘When I drive down the strip outside a military installation and count 20 fast-cash lenders in less than 4 miles, that’s not a convenience, that’s a problem. I commend Secretary Carter for taking this important step to make the Military Lending Act more effective.’” [1]

The Law:

The Military Lending Act[2] and its enforcing regulations protect U.S. military-service members and their families from predatory lending practices, making it harder for financial firms to charge high interest rates. Among other safeguards, the rules cap the Military Annual Percentage Rate (MAPR) at 36 percent. That is far lower than the effective rates paid for short-term, small loans—such as for vehicles or to cover expenses between paychecks—that can cost service members thousands of dollars in interest.

The Solution:

The military-lending law was recently amended to broaden the kinds of loans and loan products that fall under the existing law. Previously, creditors would avoid that cap by offering military consumers products like rolling lines of credit that didn’t fall under the law, allowing them to charge excessive rates. Now, all such credit products will be capped at 36%.

The rate cap now also includes certain costs of credit like interest, application and participation fees, charges for credit insurance, identity theft monitoring products, and other add-on products. This means lenders can no longer avoid rate cap rules by imposing extra fees. The rules also prohibit lenders from taking account access or a security interest in a vehicle title, and they prohibit lenders from requiring service members to submit to arbitration in the event of a dispute. The new rules will be gradually implemented starting on Oct. 1.

A person who violates this section is liable in a civil lawsuit for (i) any actual damage sustained as a result of the violation, but not less than $500 for each violation; (ii) punitive damages; (iii) attorney fees, and (iv) any other relief provided by law. A person may not be held liable if the person shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error. Examples of a bona fide error include clerical, calculation, computer malfunction and programming, and printing errors. An error of legal judgment with respect to a person’s obligations under this section is NOT a bona fide error.

A recent court decision upheld the certification of a class of military service members who were charged excessive interest rates. If you feel that you have been charged an excessive interest rate, whether through stated amount of interest, or through add-on fees or products, please contact a business litigation lawyer, government litigation lawyer, predatory lending lawyer or our firm for a consultation.

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[1] http://www.consumerfinance.gov/newsroom/cfpb-statement-on-department-of-defense-military-lending-act-final-rule/

[2] 10 U.S.C. § 987

Drug Trafficking – Reduced and Retroactive Prison Sentencing

Our Prison System: Overcrowded and Expensive

Over the past few decades, prison overcrowding has become a growing national concern. As of August 29, 2015, there were more than 94,000 individuals serving time in federal facilities for drug related offenses.[1] This figure is an increase from around five thousand inmates in 1980 when Ronald Reagen took office. In addition, the federal prison system currently costs taxpayers approximately 6.7 billion dollars a year to house these inmates. [2] A Congressional Budget Office analysis in September of 2014 found that passing a bipartisan bill in Congress to reform mandatory minimum sentences, the Smarter Sentencing Act, would reduce prison costs by $4 billion in just the first decade. The Justice Department projected savings of at least an additional $7.8 billion in the second decade. [3]

 “War on Drugs:” Reagan’s Assault on Drug Trafficking

These dramatic increases in prison populations are a direct result of the Reagan administration’s “War on Drugs.” Under the Reagan administration, federal sentencing guidelines were enacted that led to lengthy sentences for drug traffickers which was the intended goal of the revisions. However, the guideline changes also had the unintended result of placing offenders who only played minor roles in these drug operations, like couriers or “mules,” into lengthy sentences as well. In addition, the tougher laws have done little to slow down the drug trade or curb recidivism, both unfulfilled goals of the tougher criminal laws.

Reduction in Federal Sentencing Guidelines for Drug Trafficking Offenses

All of the factors above led to the revision of the Guidelines which will take effect next month.  In July of 2014, the United States Sentencing Commission voted to apply a reduction in the federal sentencing guideline levels to most federal drug trafficking offenses retroactively, to take effect in November of 2015. The Federal Sentencing Guidelines are criminal law rules that set out a uniform sentencing policy for individuals and organizations convicted of felonies and serious (Class A) misdemeanors in the United States federal courts system.

The Result

The result of this decision is that many offenders currently serving time in the federal penal system could now be eligible to have their sentences reduced. Defendants sentenced in drug cases now have the ability to elect to have their sentence reviewed by the Court and judges now have the ability to review old cases to determine if a sentence reduction is warranted. Judges will review each case independently and determine if a sentence reduction poses a risk to public safety and is otherwise appropriate. The hope is that this long-overdue change will continue to allow the government to prevent and punish narcotics trafficking, allow minor offenders an opportunity to reform and be contributing members of society, and cut costs to the everyday taxpayer.

If you or someone you know thinks you may be eligible for a reduced sentence under the new guidelines, please contact a criminal law attorney or you can email our firm at  clientrelations@hullbarrett.com.

Prison,-BKH,-for-web

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The author of this piece, Brooks K. Hudson, is a criminal defense lawyer focusing on felony and white collar charges.  Prior to practice at Hull Barrett, Brooks worked at the District Attorney’s Office as an Assistant District Attorney.

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[1] Inmate Statistics – Offenses,” Federal Bureau of Prisons, accessed August 29, 2015,http://www.bop.gov/about/statistics/statistics_inmate_offenses.jsp.

[2] Office of Management and Budget, “Public Budget Database: Outlays,” http://www.whitehouse.gov/omb/budget/Supplemental.

[3] http://thinkprogress.org/justice/2014/09/17/3568232/the-united-states-had-even-more-prisoners-in-2013

Image Credit: rook76/shutterstock.com

What Beats Employment Attorney Jim Ellington?

Do you know your attorney outside of the legal realm?  What do you get when you push away the motions and legal research?  Attorney Jim Ellington is keeping it PG and confesses to Augusta CEO what beats him outside of the office.

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Gearing Up For Year End Tax Planning

This is Part I in a two part series that discusses charitable giving in conjunction with taxes and estate planning.

Tax Planning to Decrease Income Tax Liability

As we approach the end of the calendar year, many people begin thinking about year-end tax strategies and tax planning that can reduce the income tax bite when filing their tax returns next spring. Those individuals who are inclined to support their favorite charities may find it advantageous to make year-end gifts that not only provide vital support to the organization but help reduce the donor’s income tax liability.

Traditional Giving Patterns

Past giving patterns suggest that religious and educational institutions are the primary recipients of support from donors but other types of organizations, including animal welfare, conservation, and health and medical research, are frequent beneficiaries of tax planning donations. Cash is the easiest way to make a gift and will be welcomed by any organization relying on gifts to keep it operating.

Other Methods of Giving

The gifting of appreciated securities can be very advantageous to both donor and recipient as the donor receives a charitable income tax deduction based on the current fair market value of the assets being donated and escapes the capital gains tax that would otherwise be levied if the assets were sold and the cash proceeds from the sale donated to the charity. The charity can elect to keep the securities or can immediately sell them at current market value and realize the cash proceeds for the organization. Occasionally, more unusual types of gifts are offered to a charity, such as a parcel of real estate. However, a donor cannot expect a charitable organization to blindly accept such a gift without exercising due diligence to determine whether there are environmental issues or whether the real estate is easily marketable for the organization to obtain the cash proceeds from an eventual sale.

Communication with Charitable Organization

Donors are well advised to communicate with their intended charity about their intended gift, especially if a non-cash donation, and work through any issues which may cause the charity to politely decline the opportunity to receive the gift. Charities also like to know about the donor’s intended use of the gift when received by the charity, such as a particular department or program within the organization. As a donor, please engage in a dialogue with the charitable beneficiary if your gift is anything more than a nominal annual donation in support of the charity’s operations.

Making Sure Your Charitable Contribution is Advantageous for Tax Planning Purposes

Your tax, financial and legal advisers are important partners in making sure that the gifts meet both the intent of the donor and the expectations of the recipient. Making both sides of the gifting process satisfied is one of the most rewarding aspects of our practice. We welcome the opportunity to discuss your charitable gifting ideas and provide counsel and advice on the best approach for you and your family.

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Don’t Lose Your Lien Rights Provided By Lien Laws

Don’t lose your lien rights thereby forfeiting your claim of owed payment because of the pitfalls of lien laws.

Picture this. Your company has just completed work on a construction project. Your paid application has been submitted and thirty days have passed without payment. The general contractor has finished the job and has promised a check just as soon as the owner pays. He tells you to be patient; this should all be worked out in a month or two. What do you do?

In Georgia, construction lien laws were enacted to protect construction companies and material suppliers performing work on credit to secure their rights to payment through their right to record and file a claim of lien. When one provides labor, materials, equipment or services to a construction project and they are not paid, the mechanics and materialmen’s lien laws allow them to place a lien on the property improved, thereby providing a secured interest in the property to help ensure payment of the amounts owed. However, lien laws contain numerous pitfalls, any one of which can lead to a lien being deemed invalid and a construction company losing its protection from non-payment. A seemingly harmless mistake in the name of a company or owner involved in the project, a miscalculation of the total amount owed, or an inaccurate description of the property can result in the loss of lien rights and the leverage it provides.

To avoid the hazards associated with the strict requirements of the lien laws, confirm the date that work was completed and calendar 90 days out as the date lien rights expire. If payment is not received within 60 days of completion of work, contact your attorney to ensure they have enough time to obtain and confirm the necessary information and properly prepare and file the lien in the Superior Court Real Estate Records where the job was located. Specific requirements mandating the filing of a lien within 90 days, providing notice to the owner via certified or overnight mail, and commencement of a lawsuit within 365 days of filing all must be strictly complied with in order to avoid having your lien deemed invalid.

Construction liens are an invaluable weapon in a construction company’s arsenal. However, each case varies depending on the facts and different actions are required for different situations. To protect your company’s assets, rely upon an experienced attorney who can assist you in navigating the perils associated with the Georgia lien law statutes.

Construction-DAD-for-Web

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A Viral Marketplace: Social Medias’ Rights to Use Original Content of Others

The practice of sharing photos, videos, and ideas via social media outlets has become habitual, if not expected. The realm of social media has seen exponential growth in the number of companies and users alike in the last ten years. However, many (and probably most) users, eager to use the most recent and/or popular social networks, do not stop to read the terms of service of these social media services. These eager social media users do not realize that, in expeditiously agreeing to the terms of service of these networks, they are assigning the copyrights to their intellectual property and likenesses to these companies.

The Terms of Service of Social Media Networks Strip Users of Valuable Rights.

Under United States copyright law, the creator of a work such as a photograph, video, design, sculpture, painting, choreography, and so on generally retains an exclusive bundle of rights to reproduce, distribute, perform, and display the work. The creator has these rights unless he or she made the work pursuant to an agreement, or it was made in the course of the creator’s employment. As a result, generally any original photograph or video a user posts to a social network begins as the exclusive property of that user.

Many prominent social media companies, however, have included in their terms of use language retaining licenses to the content that users post. For example, the current Terms of Service or Use of Facebook, Instagram, and Snapchat all include language which grants royalty-free licenses to the content that users post. A portion of the current Snapchat Terms of Use are as follows:

“You retain all ownership rights in your User Content. However, by submitting User Content to Snapchat, you hereby grant us an irrevocable, nonexclusive, worldwide, perpetual, royalty-free, sublicensable, and transferable license to use, reproduce, modify, adapt, edit, publish, create derivative works from, distribute, perform, promote, exhibit, and display such User Content in any and all media or distribution methods, now known or later developed.” [1]

Similarly, Facebook retains a license in user content. Unlike Snapchat, however, the licenses terminate when the user deletes his or her account unless the licensed content also appears on another’s profile. The specific language is included below:

“You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. In addition: For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.” [2]

Finally, Instagram—which was acquired by Facebook in 2012—also retains a license to users’ content in its present Terms of Use, stating:

“Instagram does not claim ownership of any Content that you post on or through the Service. Instead, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service . . . .” [3]

But, it should be noted that, like Snapchat, the licenses Instagram retains do not terminate in the event the user deletes his or her account.

The problem is, while the terms of service or use are readily available online to any user, the terms of service do very little to educate the average user of what the verbiage actually means. It would be absurd to think that a user must consult a copyright attorney every time he or she decides to open an account on a social network. Not surprisingly, in implementing these click-through terms of use, social networks have effectuated perhaps the largest continuing waiver of copyrights in history..

Copyright-on-Social-Media-for-web

What Rights do Facebook, Snapchat, Instagram, and Other Similar Social Networks Have to Exploit User Content?

When the users enter into licensing agreements with social networks by agreeing to their terms of use, they waive their rights to control the content as they are entitled under copyright law. Upon a waiver of these rights, social networks can use and disseminate a user’s name, likeness, original photos, original videos, and so on for lawful purposes, such as for advertising, without the user’s consent.

For example, imagine that a user posts a picture on social media of a mother and her healthy infant child right after the child’s birth. Subsequently, the social media provider sublicenses the picture to a hospital advertising the adverse effects of alcohol use on infants during the gestation period. The picture then appears on a banner advertisement on search engines every time someone searches “fetal alcohol syndrome,” or something similar. Because the terms of service of major social media networks retains rights in what users post, the mother and the child would endure the implications that the mother was irresponsible and drank alcohol during gestation, and the child suffers from the associated complications. The mother and the child would have no recourse against this sublicense.

Some social network users have brought legal actions in attempts to curtail social networks’ use of their content for advertising purposes. For example, in Fraley v. Facebook, Inc., [4] the plaintiffs alleged that Facebook unlawfully misappropriated their names, photographs, likenesses, and identities for use in paid advertisements without obtaining the plaintiffs’ consent. In that case, the named plaintiff, for example, visited Rosetta Stone’s Facebook profile page and clicked the “Like” button in order to access a free software demonstration. Subsequently, her Facebook user name and profile picture, which bears her likeness, appeared on her Friends’ Facebook pages in a “Sponsored Story” advertisement consisting of the Rosetta Stone logo and the sentence, “Angel Frolicker likes Rosetta Stone.” The Northern District of California denied Facebook’s motion to dismiss [5], but the parties ultimately settled before trial.[6] Unfortunately, cases such as these are currently few and far between and do not represent an entirely feasible vehicle through which the average social network user can combat the use of his or her intellectual property—especially in light of the language involved in the terms of use or service.

It is imperative, therefore, that social network users address this problem with a two-part solution: education and restraint. In the event the language is unclear or the user has questions, a quick Google search may generate summaries of the terms in plain English as well as articles explaining the legal jargon. The more educated users are about their rights, the more they can protect their intellectual property and likenesses. Second, users should exercise restraint in the amount and types of content they post to social networking sites. It would be prudent for users to refrain from posting embarrassing or otherwise unbecoming content due to the fact that it immediately becomes licensed to social networks for their use.

Artists, sculptors, dancers, painters, photographers, and companies that create and author copyrightable material must be especially wary of posting photographs and videos on social networking sites. The fact that the creators of these works have exclusive rights to reproduce, distribute, perform, and display these works is the primary reason those works have monetary value. While posting copyrightable material on social networks indubitably provides for nearly an infinite amount of exposure to the public, the artists, sculptors, dancers, painters, photographers, and companies are giving up the rights to the monetary value of the works. Consequently, it is important for creators of copyrightable works to protect their rights. They must take time to understand the rights they have in their works, to consult legal counsel if necessary, and to exercise restraint when posting.

When social network users enter into licensing agreements with social media outlets through click-through terms of use or service, they waive their copyrights to the content that they post. Although some controversies result in lawsuits, cases are relatively rare and do not afford users with a reasonable means of protecting themselves. Therefore, all users must educate themselves—including hiring legal counsel—and practice restraint in order to protect their copyrights in their works.
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[1]               Snapchat Terms of Use as of July 22, 2015.

[2]               Facebook Terms of Service as of July 22, 2015.

[3]               Instagram Terms of Use as of July 22, 2015.

[4]               Fraley v. Facebook, Inc., 830 F. Supp. 2d 785 (N.D. Cal. 2011).

[5]               This is true for all of the plaintiffs’ claims except for an unjust enrichment claim as to which Facebook’s motion to dismiss was granted.

[6]           See Fraley v. Facebook, Inc., 966 F. Supp. 2d 939, 941-44 (N.D. Cal. 2013) (approving settlement agreement).

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The Best Lawyers in America® includes 12 Hull Barrett Attorneys with 1 Named as 2016 Lawyer of the Year

12 lawyers at Hull Barrett, PC were selected by their peers for inclusion in The Best Lawyers in America® 2016.

Best LawyersBest Lawyers compiles its lists of outstanding attorneys by conducting exhaustive peer-review surveys in which thousands of leading lawyers confidentially evaluate their professional peers. “The methodology is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area.”  The process includes nomination, peer review, analysis of feedback and eligibility check. The lawyers being honored as “Best Lawyers” have received particularly high ratings in their surveys by earning a high level of respect among their peers for their abilities, professionalism and integrity.

The values of Best Lawyers in America align with the values of Hull Barrett: Experience, Quality and Community.

Not only are 12 lawyers included in the upcoming list, George Hall is named as 2016’s Lawyer of the Year for Personal Injury Litigation – Defendants.

Hall

 

The Hull Barrett attorneys selected for inclusion in The Best Lawyers in America® 2016:


Douglas D. Batchelor, Jr.

  • Government Relations Practice
  • Health Care Law

Mark S. Burgreen

  • Tax Law

Neal W. Dickert

  • Mediation

Davis A. Dunaway

  • Insurance Law

James B. Ellington

  • Employment Law – Management
  • Litigation – First Amendment
  • Litigation – Labor and Employment

George R. Hall

  • Legal Malpractice Law – Defendants
  • Litigation – Insurance
  • Personal Injury Litigation – Defendants
  • Professional Malpractice Law – Defendants

R.E. (“Rand”) Hanna III

  • Public Finance Law
  • Real Estate Law

David E. Hudson

  • Bet-the-Company Litigation
  • Commercial Litigation
  • First Amendment Law
  • Litigation – Construction
  • Litigation – First Amendment
  • Personal Injury Litigation – Defendants

William J. Keogh

  • Commercial Litigation
  • Litigation – Construction

Darren G. Meadows

  • Environmental Law

Patrick J. Rice

  • Bet-the-Company Litigation
  • Commercial Litigation
  • Medical Malpractice – Defendants
  • Personal Injury Litigation – Defendants

William H. Tucker

  • Real Estate Law

“Best Lawyers is the oldest and most respected peer-review publication in the legal profession.”

For more information about the inclusion process or credit for direct quotes, please check out the history of Best Lawyers.

Small Things that Make a Big Difference in Mediation

My wife constantly tells me, “It’s not what you said; it’s how you said it.” Nothing is truer in mediations. Whether an attorney or a client, the statements you make before the mediation and in the opening statement often set the tone for a successful or unsuccessful mediation. Body language is also important. The genesis of this presentation of mediation advice is my observations over the last 16 years of small things that attorneys and their parties have done or not done during a mediation which seemed relatively insignificant, but turned out to be major factors in determining whether the mediation was successful. Many times, the parties and their attorneys do not realize how some relatively small factors can have a huge impact on the mediation. Some of those points are obvious, but they bear repeating.

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A.   Before the Mediation

  • Know the process before arrival – too often, plaintiffs arrive with the explanation that they are going to a meeting to settle the case. If you are an attorney, walking the client through the entirety of the process puts the client at ease and helps him/her prepare. If you are the client, and don’t know the process, ask. It is a simple point, but it happens often.
  • Speak to the other side before mediation begins – it is common courtesy and sets the right tone. I once spent hours calming down a plaintiff who was a long-time policy holder when the adjuster did not speak to him before the mediation began.
  • Don’t dump new damages on Defendants at the beginning of the mediation – it is an absolute recipe for failure. Despite court orders, no person has unlimited settlement authority.

B.   Opening Remarks – “where the most problems occur”

  • Listen to other side’s opening – appear genuinely interested, even if you are not. Don’t check your phone constantly, and turn your phone off if you are able. Look at the other side. This is where your body language can impact the mediation.
  • A 45-minute Power Point is not needed – in a minor case, you will not enhance the value of your case or strength of your defenses with a lengthy Power Point.
  • Treat everyone with respect – don’t ridicule corporate parties in openings. The corporate representative is a person just like you. Many big companies are very safety conscious and lack of respect can really set the wrong tone. Be very careful in your comments about a Decedent if you represent the defense.
  • Don’t disparage the other side or their attorney in opening – Once, in opening, I heard a lawyer say, “I have tried this case a hundred times and your lawyer has never tried one.” Do you think that helped?
  • Don’t say “I am only here because it is court-ordered” – and you have no case or no defense.  If you want to settle, it sets the wrong tone.
  • Don’t overstate the strength of case in opening unless you really believe it – in 3-4 hours, if you are pressuring you client to settle, they will remind you of your fighting words.
    • Be especially careful about statements about venue, for example, “there has never been a big verdict in this county” or “defendants never win here.” Big settlements are paid everywhere and defense verdicts happen in unlikely places.
  • In opening statement as defendant, don’t’ just say I am here to settle your case – look at the plaintiff, and say “this is the other side and I need to give you some perspective as to my offers.” There is a fine line and many disagree with me, but it is very important in cases with a liability defense.
  • Know the basic facts and names of key players – nothing tells the other side you are not serious about the case quicker than botching the most basic facts.

C.   The Actual Mediation

  • Be patient – especially on the defense side. It can take a while to get to know the plaintiff and bring down expectations if it is needed. As attorneys have grown accustomed to mediations, it is important to remember that many clients are new to the procedure. Also, manage expectations as most want mediations to be complete within a few hours.
  • Make realistic opening offers and demands – demanding $200,000 to settle a $25,000 case only makes the mediator money. Offering $5,000 initially to settle a $100,000 case is also not productive. I have never seen unrealistic demands or offers procure a better deal.
  • Don’t say “I will impeach the other party within an inch of his/her life, but I am not going to tell you how” – unless you are a legendary trial lawyer, empty threats don’t work and have ethical problems. Share the smoking gun or keep it in the holster.
  • Don’t threaten to walk out unless you mean it – if you keep saying I will leave unless the other side does X and keep staying, you lose all credibility.
  • An apology can go a long way to settle a case – in professional negligence cases or a really sensitive case, the Defendant saying “I am sorry” can seal the deal.
  • Shake hands when it is over – it is professional and sets the tone for the next time you deal with the parties.

 

Image Credit: Jacek Dudzinski / Shutterstock

Deluge of Lawsuits: The Battle Over the Scope of the Federal Clean Water Act

Federal, state, and local governments all seem to be in agreement on a basic principle: it is important to protect the integrity and quality of our nation’s oceans, rivers, lakes and streams. Many states (such as Georgia) have longstanding laws and agencies dedicated to this task. Recently, however, a major battle has erupted between the federal government and at least 28 states over a simple-sounding but fundamental question: where does the jurisdiction of state and local government end and the federal government begin? The answer to this question is not an academic issue; it has such significance that groups such as the Chamber of Commerce of the United States of America, the National Federation of Independent Business, the National Association of Home Builders, the National Association of Manufacturers, the American Farm Bureau, and others have filed additional lawsuits over the issue within the last month.

What is the dispute, and how does it impact your home and business?

In 1972, Congress passed a law which would grow into the current Clean Water Act (or “CWA”). Regulations are issued under the Clean Water Act by the United States Environmental Protection Agency (the “EPA”). By enacting the CWA, Congress recognized that states historically played a pivotal role in achieving water quality goals and in regulating land and water use as well.[1] Many states had already enacted laws and programs to protect local waterways.[2] Rather than invalidating all of these historic state efforts, Congress believed that the best way to enhance the integrity of our waterways was to overlay federal law on the existing state laws.[3] The CWA thus allows the states to administer some of their own programs, subject to EPA’s approval.[4] To this end, a number of the nation’s water pollution programs are primarily administered by the states rather than the federal EPA.[5]

The Clean Water Act, by its terms, only applies federal law to “navigable” waters. “Navigable waters” are defined somewhat paradoxically as “waters of the United States.” If that definition seems somewhat unhelpful, you are not alone: the United States Supreme Court has already taken and heard three cases involving the proper reach of the federal Clean Water Act.[6] Earlier this year, a judge issued an opinion which noted “just how difficult and confusing it can be for a landowner to predict whether or not his or her land falls within CWA jurisdiction—a threshold determination that puts the administrative process in motion. This is a unique aspect of the CWA; most laws do not require the hiring of expert consultants to determine if they even apply to you or your property.”[7]

In an effort to resolve the mystery and bring clarity to the boundary line between federal and state jurisdiction, two federal agencies (the EPA, along with the U.S. Corps of Engineers) published a new regulation on June 29, 2015, attempting to define what they consider to be the “waters of the United States” (often referred to as the “WOTUS Rule”).[8] The WOTUS Rule is controversial for several reasons and touched off a series of lawsuits and actions in Congress seeking to change or invalidate the administrative agencies’ new rule.

Thus the law is currently in a state of upheaval – which is problematic for anyone who owns or uses property. According to the enacting agencies, the WOTUS Rule is a reasonable interpretation of Congressional intent, scientific findings, and decisions issued by the U.S. Supreme Court and others. To its critics, the WOTUS Rule is the result of a flawed rulemaking process which failed to take the concerns of interested stakeholders into account, and which oversteps the limited federal power that the Constitution of the United States otherwise reserves to state and local governments.

The national Chamber of Commerce, for example, contends in its lawsuit that the WOTUS Rule potentially will bring more than 8.1 million miles of rivers and streams under federal regulation, as opposed to the approximately 3.5 million miles presently categorized as “waters of the United States.”[9] The Chamber of Commerce thus concludes that under the WOTUS Rule, “virtually any business that owns or operates a facility or has property could be adversely affected, particularly if it has ditches, retention ponds for storm water runoff, fire/dust suppression ponds, or other surface impoundments on site.”[10] The enacting agencies have not yet filed a response to these allegations, and typically have at least sixty days from service of the complaint to respond.[11]

Adding to the confusion, the new WOTUS Rule allows for administrative agencies to use “remote sensing sources,” “desktop tools” and “mapping information” for them to make their determinations – which means that the regulators deciding their jurisdictional reach may be relying on information that is not available to (or is different from) the property owner and its experts (or its lawyers).[12] “Thus,” according to the Chamber of Commerce, “while the [WOTUS] Rule in many cases will clearly apply to lands beyond the reach of the CWA, it will also arguably apply in an even broader swath of cases – cases as innocuous as a landowner seeking to drain storm water from a depression that might (or might not) be considered a puddle, or wishing to dig holes for a fence post in an area that retains waters after storms.”[13]

The enacting agencies, by contrast, contend that these types of claims and concerns are either overblown or that they misunderstand the new WOTUS Rule. According to the enacting agencies, “[t]his rule makes the process of identifying waters protected under the CWA easier to understand, more predictable, and consistent with the law and peer-reviewed science, while protecting the streams and wetlands that form the foundation of our nation’s water resources.”[14] The enacting agencies also contend that the WOTUS Rule has a much more limited impact than do its critics, only estimating more modest increases of “between 2.84 and 4.65 percent in positive jurisdictional determinations annually,” if not an actual decrease in the scope of jurisdictional waters under the CWA.[15] The agencies also contend that the increased costs of implementing the WOTUS Rule will be more than offset by the economic benefits derived from implementing the new rule.[16] One would expect that all of these contentions, in one form or another, are now being challenged in court.

As of today, there are at least nine separate lawsuits challenging the WOTUS rule, brought by 28 individual states (including Georgia and South Carolina), and 29 private parties and trade organizations. These lawsuits, generally, seek injunctions against the implementation of the WOTUS Rule and/or an order declaring the WOTUS Rule invalid. Additional plaintiffs and lawsuits would seem likely as well, and it is fair to say that the myriad of procedural issues surrounding the disputes are quite complex.

Property owners and business owners are, unfortunately, stuck in the middle of this jurisdictional dispute. The WOTUS Rule, according to its critics, may impact properties with only intermittent streams, ditches, stormwater detention ponds, private fishing ponds, and simple generic “wet” spots — even if they are far from what one would consider to be a traditional “navigable water” used for commerce, and even if they have no significant impact on the chemical, physical, or biological makeup of those larger bodies of water. Property owners may be required to hire experts to determine whether their property – which does not front on any significant river or lake – falls under the federal permitting process of the WOTUS Rule and the Clean Water Act. The cost and time involved is not insignificant; the national Chamber of Commerce contends that “[t]he average applicant for a nationwide permit spends 313 days and $28,915 – not counting costs of mitigation or design changes. In addition, over $1.7 billion is spent each year by the private and public sectors to obtain wetland permits.”[17]

When does the WOTUS Rule take effect?

To steal a phrase, the jury is still out. The WOTUS Rule provides by its terms that it takes effect on August 28, 2015.[18] Given the various lawsuits which have already been brought, as well as pending Congressional action aimed at preventing the WOTUS Rule from being implemented, it remains an open question. There are multiple requests to courts to enjoin the implementation of the WOTUS Rule, and the House of Representatives voted at least one bill out of committee to essentially defund agency implementation of the WOTUS Rule. All of these things, however, will take time — perhaps considerable time — to resolve. And given the looming presidential election process which is fast approaching, it is uncertain that the WOTUS Rule – even if it clears all of its hurdles – will ever actually have the effect of law at any date in the future.

So, ultimately, why does this matter to you?

The short answer is, even the enacting agencies recognize that the WOTUS Rule may have a significant impact on consumers and the economy. The enacting agencies concede, for example, that the WOTUS Rule is a “major rule” which is defined as a regulation likely to result in “an annual effect on the economy of $100,000,000.00 or more;” “a major increase in costs” for consumers, industries, government agencies or geographic regions; and/or likely to create “significant adverse effects” on employment or markets.[19] Any person, business, or local government that wants to develop or use land may now be subject to a federally mandated permitting regime which can impose significant cost, expense and complexity on any project. Or, given the multiple pending lawsuits, it may not. The state of affairs thus adds an element of uncertainty as to what, exactly; the applicable law is for the short term.

Thus, ironically, a rule designed to clarify the law may have instead brought more uncertainty than already existed. We will continue to monitor the various lawsuits and legislative activities surrounding the WOTUS Rule, and will be providing an update as events warrant.

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[1] The Clean Water Act specifically limits its intrusion into the states’ traditional authority to regulate land use and water use. See 33 U.S.C. § 1370 (stating that states may adopt “any standard or limitation respecting discharges of pollutants” that are not “less stringent” than federal standards and requirements.)

[2] See, e.g. Ga. L. 1964, p. 416 (Georgia Water Quality Control Act of 1964, O.C.G.A. § 12-5-20 et seq.).

[3] In addition to improving water quality, the Clean Water Act recognizes that states have primary responsibilities to prevent, reduce, and eliminate pollution, and to plan the development of land and water resources. 33 U.S.C. § 1251(b).

[4] 33 U.S.C. § 1342(b).

[5] To date, all states except Idaho, Massachusetts, New Hampshire, and New Mexico have EPA-approved NPDES programs. EPA governs Native American lands. State Program Status, ENVIRONMENTAL PROTECTION AGENCY, http://cfpub.U.S. Environmental Protection Agency.gov/npdes/stormwater/authorizationstatus.cfm (last visited March, 25 2013).

[6] United States v. Riverside Bayview Homes, 474 U.S. 121 (1985); Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001); Rapanos v. United States, 547 U.S. 715 (2006).

[7] Hawkes Co., Inc. v. U.S Army Corps of Engineers, 782 F.3d 944, 1003 (8th Cir. 2015) (Kelly, K., concurring).

[8] 80 Fed.Reg. 37,054 (June 29, 2015).

[9] Chamber of Commerce of the United States of America, et. al. v. EPA, No. 4:15-cv-386, Complaint filed July 10, 2015 at ¶ 83.

[10] Id. at ¶ 85.

[11] FED.R.CIV.P. 12(a)(2).

[12] See 80 Fed.Reg. at 37,076-77 (June 29, 2015).

[13] Chamber of Commerce, supra at ¶ 90.

[14] 80 Fed.Reg. at 37,055 (June 29, 2015).

[15] Id. at 37,101.

[16] Id.

[17] Chamber of Commerce, supra at ¶ 89.

[18] 80 Fed.Reg. at 37,054 (June 29, 2015).

[19] 5 U.S.C. § 804(2).

Image Credit: Africa Studio/Shutterstock.com

Physician Employment Contracts: Important Considerations

Whether a young physician finishing up residency or an experienced surgeon, negotiating and signing an employment contract can be overwhelming.  Physician employment contracts are especially unique, and it is this contract that will ultimately determine your relationship with the hospital or group with whom you chose to join.

When looking at these contracts, it is important to have a complete understanding of the terms of the contract.  Below are just a few of the contract clauses to which you should be paying close attention:

The Term

The contract should specify a start and end date.  Some contracts are only written for a year while others are automatically renewable.  It is important to consider the term and how the renewal process works.

Compensation Formula

The starting salary is just one number among many which will ultimately determine how you are compensated.  Many groups provide a base salary but will ultimately compensate based upon performance.  Understanding the compensation formula is of utmost importance in deciding whether the contract meets your expectations.

Non-Compete Clauses/Restrictive Covenants

Most physician employment contracts will have a non-compete clause that prohibits the physician from practicing medicine for a specified period of time in a specific geographical area.  Restrictive covenants may also limit the physician’s ability to keep certain patients.  Knowing the restrictions that will be placed on you should you chose to leave the group may play a major role in knowing whether this arrangement is right for you.

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Image Credit: Roman Motizov/Shutterstock.com

Written by Mary Runkle Smith

3 Days Left: The Importance of Golden Harvest Food Bank

Hull Barrett partnered with First Citizens Bank and Ivey Residential to raise 45,000 pounds of food and funds during Legal Food Frenzy benefiting Golden Harvest Food Bank.  With the fundraiser ending in only 3 days (May 1st), we have received tremendous response from the community.  We are 68% to our goal!

In response to our outreach, the firm was asked why Golden Harvest Food Bank is important.  Dedication to the community is part of Hull Barrett’s mission.  The lawyers at Hull Barrett have also responded about the local non-profit battling hunger and community outreach in general:

Lanier“Food banks are among the most efficient non-profit entities in the country. According to GuideStar, the median program ratio for food banks is 94%. Golden Harvest Food Bank’s program ratio is even better – 96%.  Supporting Golden Harvest is a smart choice, and a good use of charitable dollars.” N. Shannon Gentry Lanier
Hudson-D“’Those of us who are blessed not to ever worry if we will have enough to eat, and are in a position to help those who are not so fortunate, should take great joy in giving to the Legal Food Frenzy.’  For us people of faith, whether in this way or some other, we are commanded to do for those who are in need.” David Hudson
Hall“We are blessed to live in the greatest country on earth. No child here should be hungry.” George Hall
Smith2“Golden Harvest Food Bank is a tremendous way to support those families in need throughout the year.”  Mary Runkle Smith
Lang-Cropped-Reduced“When I asked my daughter, a teacher, about how hunger affects children’s performance, she said, ‘everyone knows what it feels like to be hungry.  All you think about at the time is being hungry.  You sit and watch the clock until lunch.  If you aren’t thinking about the hunger itself, you are thinking about how embarrassing it will be if your stomach growls loud enough for anyone to know that you are hungry.  If your basic needs aren’t met, how in the world would you be able to learn anything?’” Susan R. Lang, Director of Administration
Driver3“It’s important for everyone to remember that we are part of a larger community of people and families that can use our help.” Chris Driver
Robertson“The Georgia Legal Food Frenzy is a tremendous opportunity for the Augusta legal community to show its appreciation and support of the CSRA.  Through this program, each legal entity that provides aid to those who are hungry can take pride in being a catalyst to the ultimate goal of ending hunger in the CSRA.  This  event furnishes a forum  where friendly competition is encouraged and, unlike court room litigation, everyone who participates is a winner.” George Robertson
Keogh“I have been proud to serve on the Board of Directors of the Golden Harvest Food Bank for several years now.  Golden Harvest, and its partner organizations, have been instrumental in addressing the needs of those in our community who are struggling.  Golden Harvest distributed over 17 million pounds of food in the CSRA last fiscal year, and is poised to distribute even more this year.  Giving back to those in need is an important responsibility we all have, and dedicated organizations such as Golden Harvest really make a difference.” Bill Keogh

 

Partnership’s Goal to Raise 45,000 lbs of Food during Legal Food Frenzy

This is Hull Barrett’s 4th year and First Citizens’ 2nd year participating in Legal Food Frenzy.  New to the partnership is Ivey Residential!  Firehouse Subs also offered an in-kind donation (more info below).

A company that is doing business in the community should also SERVE the community.  Hull Barrett realizes a mere monetary donation from the firm is not enough to make a real dent in the hunger stats that face the CSRA and surrounding areas.

Hull Barrett, First Citizens Bank and Ivey Residential are looking to spend more time and effort to bring awareness to the food insecurity and hunger statistics, and more, to do something about it.

3 companies, working together, have a real shot at making a difference.  We have set an ambitious goal of 45,000 lbs of food and funds, a goal that cannot be met without the help of the public’s generosity.

So, what is Legal Food Frenzy?

The Office of the Attorney General, the Young Lawyers Division of the State Bar of Georgia, and the Georgia Food Bank Association have joined forces to create a friendly food and fund drive to benefit food banks in Georgia from April 20 – May 1, 2015.

Nearly 60% of Georgia’s public school children are eligible for free and reduced lunch.

1 in 5 Georgians – are food insecure, meaning they don’t always know where they will find their next meal.

1 in 4 children in Georgia are food insecure.

The Legal Food Frenzy provides a much needed supply of food and funds to regional food banks to help the families of those kids during summer months when schools are closed.  The Legal Food Frenzy is timed to help meet that demand.

Golden Harvest hopes to raise $40,000 during Legal Food Frenzy.  Our partnership with First Citizens Bank and Ivey Residential would like to raise 20% of that goal.  That’s high!  But possible with the help of the community!  Interested in helping, click HERE.

How are we going to do it?

First Citizens Bank will have barrels in each branch location to collect food and funds during the 2 week drive.  In addition, they are hosting “Food Friday” on April 24th!  Every customer that brings in food or funds to a First Citizens location will receive a coupon for a free drink and chips at Firehouse Subs.  Firehouse Subs was generous for its contribution toward our goal.

Ivey Residential will gather donations and food on Sunday, April 26th from 10 am – 2 pm in the Crawford Creek and Canterbury Farms communities. Residents that want to help fight hunger but won’t be home may leave clearly marked donation bags on his/her front porch. Ivey Residential has also set up collection bins in its office and in the model homes of Crawford Creek and Canterbury Farms.

Hull Barrett will also have barrels in its offices in Augusta, Aiken and Evans.  Hull Barrett is going to take a grass roots approach with each attorney in the office reaching out and connecting in his or her own personal way.  We are also going to have a drawing the last day of the food drive, May 1st.  Anyone that donates online will be entered to win a $50 gift card to Whole Foods! Hull Barrett will also be giving away additional prizes at random, including during the first week of the fundraiser. So don’t wait to donate online!

Golden Harvest serves all of the CSRA. Let’s work together to make our community less hungry.

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