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LACBA DIRECTORY THE MAGAZINE OF THE LOS ANGELES COUNTY BAR ASSOCIATION 2017-18

OCTOBER 2017 / $5

PRESIDENTS DIGITAL AND THE PRESS SWEEPSTAKES page 26 page 34

Effective Brief Writing page 14 Motions to Seal Procedure EARN MCLE CREDIT page 17 Heart of the Matter

Los Angeles lawyer G. Warren Bleeker discusses the recent U.S. Supreme Court decision in TC Heartland v. Kraft Foods Group Brands LLC regarding venue in patent infringement cases page 20

FEATURES 20 Heart of the Matter BY G. WARREN BLEEKER In TC Heartland v. Kraft Foods Group Brands, LLC, the U.S. Supreme Court has overturned long-standing case law concerning proper venue in patent infringement cases Plus: Earn MCLE credit. MCLE Test No. 271 appears on page 23. 26 Presidential Power vs. Free Press BY STEPHEN F. ROHDE From John Adams to Donald J. Trump, U.S. presidents and the press have collided over inter preting constitutional intent concerning the nation’s best interests, with the judiciary weighing in decisively 34 Playing Games BY KARL RUTLEDGE AND MARY TRAN With the power of social media comes the lure of producing the next viral promotion to enhance business—and numerous opportunities to run afoul of the law

Special Pullout Section 2017-2018 Los Angeles County Bar Association Directory

Los Angeles Lawyer DEPARTME NTS the magazine of the Los Angeles County 10 Presidents Page 17 Practice Tips Bar Association Securing pathways to justice at a Considerations for filing a motion October 2017 critical time to seal CONTRIBUTED BY MARK GARSCIA BY THE HONORABLE WILLIAM F. HIGHBERGER, Volume 40, No. 7 MANUEL F. CACHÁN, AND JENNIFER L. ROCHE 12 Barristers Tips COVER PHOTO: TOM KELLER The value of knowing the law before 40 Closing Argument it becomes the law The "win-win" virtues of engaging in BY DIANA SANDERS pro bono services BY HANNAH BELKNAP AND TERESA GUTIERREZ 14 Practice Tips Exploring the foundations of effective brief writing LOS ANGELES LAWYER (ISSN 0162-2900) is published monthly, except for a combined issue in July/August, by the BY HONEY KESSLER AMADO Los Angeles County Bar Association, 1055 West 7th Street, Suite 2700, Los Angeles, CA 90017 (213) 896-6503. Period - icals postage paid at Los Angeles, CA and additional mailing offices. Annual subscription price of $14 included in the Association membership dues. Nonmember subscriptions: $38 annually; single copy price: $5 plus handling. Address changes must be submitted six weeks in advance of next issue date. POSTMASTER: Address Service Requested. Send address changes to Los Angeles Lawyer, P. O. Box 55020, Los Angeles CA 90055. 10.17 VISIT US ON THE INTERNET AT WWW.LACBA.ORG/LALAWYER E-MAIL CAN BE SENT TO [email protected]

EDITORIAL BOARD Chair JOHN C. KEITH Articles Coordinator SANDRA MENDELL Assistant Articles Coordinator TYNA ORREN Secretary RENA KREITENBERG Immediate Past Chair TED M. HANDEL

JERROLD ABELES (PAST CHAIR) SCOTT BOYER CHAD C. COOMBS (PAST CHAIR) THOMAS J. DALY GORDON K. ENG DONNA FORD (PAST CHAIR) STUART R. FRAENKEL MICHAEL A. GEIBELSON (PAST CHAIR) SHARON GLANCZ GABRIEL G. GREEN STEVEN HECHT (PAST CHAIR) DENNIS F. HERNANDEZ JUSTIN KARCZAG MARY E. KELLY (PAST CHAIR) KATHERINE KINSEY JENNIFER W. LELAND CAROLINE SONG LLOYD PAUL S. MARKS (PAST CHAIR) COMM’R ELIZABETH MUNISOGLU CARMELA PAGAY ZEKE PERLO GREGG A. RAPOPORT JACQUELINE M. REAL-SALAS (PAST CHAIR) LACEY STRACHAN YHEZEL ARMANDO VARGAS THOMAS H. VIDAL

STAFF Editor-in-Chief SUSAN PETTIT Senior Editor JOHN LOWE Art Director LES SECHLER Director of Design and Production PATRICE HUGHES Advertising Director LINDA BEKAS Senior Manager MELISSA ALGAZE Administrative Coordinator MATTY JALLOW BABY

Copyright © 2017 by the Los Angeles County Bar Association. All rights reserved. Reproduction in whole or in part without permission is pro hibited. Printed by R. R. Donnelley, Liberty, MO. Member Business Publications Audit of Circulation (BPA). The opinions and positions stated in signed material are those of the authors and not by the fact of publication necessarily those of the Association or its members. All manuscripts are carefully considered by the Editorial Board. Letters to the editor are subject to editing.

4 Los Angeles Lawyer October 2017

LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATION OF THE LOS ANGELES COUNTY BAR ASSOCIATION 1055 West 7th Street, Suite 2700, Los Angeles CA 90017-2553 Telephone 213.627.2727 / www.lacba.org

LACBA EXECUTIVE COMMITTEE

President MICHAEL E. MEYER President-Elect BRIAN S. KABATECK

Senior Vice President TAMILA C. JENSEN

Vice President PHILIP H. LAM

Assistant Vice President JESSE A. CRIPPS Assistant Vice President JO-ANN W. GRACE Treasurer JOHN F. HARTIGAN Immediate Past President MARGARET P. STEVENS

Barristers President JEANNE NISHIMOTO

Barristers President-Elect JESSICA GORDON

Chief Financial & Administrative Officer BRUCE BERRA

BOARD OF TRUSTEES KRISTIN ADRIAN HON. SHERI A. BLUEBOND SUSAN J. BOOTH RONALD F. BROT TANYA FORSHEIT JENNIFER W. LELAND MATTHEW W. MCMURTREY F. FAYE NIA BRADLEY S. PAULEY ANGELA REDDOCK DIANA K. RODGERS MARC L. SALLUS MICHAEL R. SOHIGIAN EDWIN C. SUMMERS III KEVIN L. VICK WILLIAM L. WINSLOW FELIX WOO

AFFILIATED BAR ASSOCIATIONS BEVERLY HILLS BAR ASSOCIATION CENTURY CITY BAR ASSOCIATION CONSUMER ATTORNEYS ASSOCIATION OF LOS ANGELES CULVER MARINA BAR ASSOCIATION GLENDALE BAR ASSOCIATION IRANIAN AMERICAN LAWYERS ASSOCIATION ITALIAN AMERICAN LAWYERS ASSOCIATION JAPANESE AMERICAN BAR ASSOCIATION JOHN M. LANGSTON BAR ASSOCIATION THE LGBT BAR ASSOCIATION OF LOS ANGELES MEXICAN AMERICAN BAR ASSOCIATION PASADENA BAR ASSOCIATION SAN FERNANDO VALLEY BAR ASSOCIATION SANTA MONICA BAR ASSOCIATION SOUTH BAY BAR ASSOCIATION SOUTHEAST DISTRICT BAR ASSOCIATION SOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATION WOMEN LAWYERS ASSOCIATION OF LOS ANGELES

6 Los Angeles Lawyer October 2017

t is axiomatic that, as attorneys, we have a duty to advocate for our clients’ interests zealously within the bounds I of the law. It is inherent in our role that we fight other peoples’ battles, but this duty encourages us to identify with our clients and view their battles as our own. Other factors

reinforce this identification, including the notion that success in representing a client will increase one’s compensation either directly (e.g., under a contingency fee arrangement) or indirectly (e.g., by enhancing one’s ability to attract business, one’s status within a partnership, or the odds of being admitted to that partnership). Logically, those attorneys more closely connected to clients (e.g., billing partners who manage the relationships and direct the work of other attorneys) will come to identify more closely with their clients’ interests. But what of those attorneys further removed? It is of them I thought while watching July’s season seven premiere of the HBO series Game of Thrones. (Apologies to those for whom this seems a stale reference. The publication process necessarily imposes a gap between when I write this column and when you read it. Apologies also to those who don’t know or care about Game of Thrones. I ask that both of you indulge me.) The episode opens in a large hall, where the assassin Arya Stark poisons what seems like every grown male of the Frey clan. The scene parallels the “Red Wedding” sequence from season three. There, the Freys, in conspiracy with the southern rulers, the Lannisters, quash the Starks’ northern rebellion by massacring Arya’s brother, her mother, and the bulk of the Stark army, all of whom are unsuspecting wedding guests at the Frey’s castle. Later in the season seven opener, Arya encounters a band of Lannister soldiers in the woods. She accepts their invitation to join them for a meal, and one wonders whether she will kill them, too. But she warms to them as she hears their tales of woe and gripes about their leaders. It quickly becomes clear that these men—all of them tired, homesick, and hungry, but generous with their meagre rations—are mere pawns in a “game of thrones” being played at the direction, and for the benefit, of others. They just want to be done with the war and go home. Anyone who has ever been at the bottom of a large litigation team (and presumably a deal team) can easily relate. As a salaried associate working under the direction of more senior lawyers, your interests are less identified with those of the firm’s clients. Your compensation is (mostly) set. Your bosses are likely to take the lion’s share of credit for any success, and blame for any failure. Often, it felt as if your primary concerns were not looking stupid, not getting fired, and getting out of the office at a decent hour so you could try to have some kind of a life. But, of course, there was always more than that. Most of us would not have become attorneys if we were not to some extent innately hard-working, conscientious, and willing—even driven—to do good work, just for the sake of it. We attorneys might all be happier with ourselves and our colleagues if we were better at recognizing and cultivating that aspect of our personalities while also recognizing that we are not our clients. Instead, we are ourselves, and we are also part of a broader legal system that hopefully will outlast us and any particular client we might represent today. n

John Keith is the 2017-18 chair of the Los Angeles Lawyer Editorial Board. He practices business litigation with the law firm of Fenigstein & Kaufman in Century City.

8 Los Angeles Lawyer October 2017 president’s page BY MARK GARSCIA

Securing Pathways to Justice at a Critical Time

THE DOOR OPENS AT 8 A.M., and already there is a long line down helped local veterans in 2016. the corridor outside Room 235 of the Los Angeles County Back at LACBA’s downtown headquarters, the director of Superior Courthouse. Concerned, anxious, worried faces—some the AIDS Legal Services Project is coordinating full-scope legal shielded to hide the evidence of recent physical abuse—populate representation for people living with HIV and AIDS. When word the hallway. All are there because they have heard help is inside. came out recently that a national health care company mailed Room 235 is small and filled with volunteers and staff from letters that inadvertently revealed a patient’s HIV status through the Los Angeles County Bar Association. As the morning pro- the envelope window, the AIDS Legal Services Project staff acted gresses, the stories are told of those who came to the Domestic immediately to help coordinate a press release and demand letter.2 Violence Legal Services Project. Declarations are written. Thick Disclosing a private health condition, such as cancer or dementia, packets of court papers are prepared. Explanations about restrain- to neighbors, landlords, or employers is a serious breach of priv - ing orders, ex parte hearings, and service of process are provided. acy, but when the condition relates to HIV/AIDS, there is added The stories are often harsh, and sometimes a volunteer needs to stigma and discrimination. step away for a moment alone to regain composure. The AIDS Legal Services Project has a network of pro bono Each day, the court issues restraining orders—more than one attorneys to assist with HIV-related legal issues such as estate would expect. The Domestic Violence Legal Services Project is an planning, insurance denials, discrimination, privacy breaches, and indispensable pathway between the community and the courthouse. Americans with Disabilities Act accommodations. Many of the Last year, this project helped 4,250 victims of domestic violence. volunteer attorneys have been with the AIDS Legal Services Project A few blocks away, on the third floor of the U.S. Citizenship since its inception by LACBA’s Barristers 30 years ago. Last year, and Immigration Services Offices (USCIS), a similar scene unfolds. the project provided more than $1 million in much needed pro This time, immigrants line the hallways. Some are “Dreamers,” bono legal services. while others have questions about keeping their families together. LACBA’s four legal services projects—Domestic Violence, Most just need help with nationalization, travel permits, and Immigration, Veterans, and AIDS—provide crucial pathways to work permits. They need help because the law is complex and legal assistance for those in need. Unfortunately, the projects are constantly changing. in jeopardy due to inadequate funding. Recently, LACBA closed Inside one of two small rooms, a wall is covered with crayon its domestic violence clinic at the Pasadena Superior Courthouse. drawings made by the children of those who came with questions. It also has reduced staff and shut down a fifth project that Sometimes the answer is not what a questioner wants to hear. provided mediation services to local communities and schools. Many times, however, there are ways under the law to help a parent It should not have been necessary to do this. or child gain legal status. The advice given is the same reliable The cause—legal services for those in Los Angeles County advice that staff and volunteers of the LACBA Immigration Legal who cannot afford them—should be at the heart of every charitable Assistance Project have been giving for 40 years, this time to a new effort of every successful lawyer in the community. At this critical generation of immigrants. The USCIS relies on the assistance of time, LACBA members can make a lasting impact in Los Angeles. the Immigration Legal Assistance Project to handle the daily surge The four legal services projects, now more than ever, need your of immigrants outside its doors and to provide an essential pathway support. If every LACBA member donates $100, we can turn for the community. The project helped 13,049 clients last year. the corner. If every LACBA member donates the dollar equivalent On the third Wednesday evening of the month, chairs are of “one billable hour” of his or her time, we can sustain the arranged in a basement meeting room at Bob Hope Patriotic projects into the future. Hall on Figueroa Street. A group of 30 veterans, some unemployed Please support Counsel for Justice (CFJ), the charitable arm and others homeless, have arrived to attend a seminar to resolve of LACBA, by donating $100 or, even better, writing in the dollar outstanding traffic tickets and warrants. For many, a simple equivalent of “one billable hour” on the dues form. There is ticket has snowballed into a license suspension, fines, or a warrant, also a “Donate” button on the LACBA and CFJ web pages so severely affecting prospects for employment. After the workshop, that you can make your donation today. n the veterans receive one-on-one consultations with volunteer attorneys who have been recently trained by LACBA Veterans 1 Porter v. McCollum, 558 U.S. 30, 44 (2009). Legal Services Project staff attorneys. The veterans leave that 2 Zachary Tracer, Insurance Company Aetna Inadvertently Releases HIV Status of Thou- evening with much needed help to reinstate a driver’s license or sands, TIME, Aug. 25, 2017, available at http://time.com/4915634/aetna-hiv-clients-letter. clear a record that will better open the door to employment. “Our Nation has a long tradition of according leniency to This month’s President’s Page was contributed by Mark Garscia, president veterans in recognition of their service.”1 The Veterans Legal of LACBA’s Counsel for Justice and a partner in Lewis Roca Rothgerber Services Project assists that tradition. Over 200 LACBA volunteers Christie’s intellectual property practice group in Los Angeles.

10 Los Angeles Lawyer October 2017 barristers tips BY DIANA SANDERS

The Value of Knowing the Law Before It Becomes the Law

YOUNG ATTORNEYS OFTEN FIND THEMSELVES overwhelmed with The cases have resulted in settlement and inconsistent rulings, the vast amounts of laws and legal concepts they are expected and, to date, there is no clear, uniform rule about whether (and to learn quickly. Sometimes this crash course in the current state how much) digital broadcasters have to pay for playing pre- of the law comes at the expense of learning about where the law 1972 recordings. The CLASSICS Act would resolve this incon- is headed. Of course, it is important to delve into the laws of sistency and allow for Sound Exchange—the performance rights your specific practice area or case, but it is equally important to organization that collects and distributes royalties earned through become apprised of proposed legislation that may affect your digital transmission—to distribute royalties for pre-1972 recordings studied area of law and the clients you serve. just as it does for post-1972 recordings. Not every bill becomes a law, but when one does, the legal Another bill to watch is the Allocation for Music Producers landscape may enter unfamiliar territory, resulting in great uncer- Act (AMP Act), which was reintroduced by U.S. Representatives tainty. This uncertainty creates a unique opportunity for attorneys Tom Rooney of Florida and Joe Crowley of New York in 2017.2 familiar with the change to step up and stand out. New attorneys Its purpose is to provide music producers royalties from the are generally limited in ways they can add value by virtue of digital performance of the recordings they produce. Pursuant to their inexperience, but being apprised of proposed legislation the Digital Performance Rights Act of 1995, artists and performers and understanding the key parties lobbying for and against it receive a 45-percent royalty whenever their songs are played in can play an integral role in becoming a valuable member of a a digital format. Producers, however, are not statutorily entitled team and a “go-to” person for clients. to royalties despite the fact that so much of creating and readying Attorneys interested or currently working in entertainment, a song for mass production rests on their shoulders. specifically the music industry, are well positioned to take advan- Producers must advocate and negotiate for entitlement to a tage of this tip since the music industry has undergone major royalty with the record label or artist by entering into an agreement changes in the last several years. It is no secret that music streaming known as a “letter of direction,” which directs a certain agreed and other digital formats have established a new standard for upon percentage of the royalty for a particular song to the pro- music consumption. Many copyright laws affecting music rights, ducer. The AMP Act creates the statutory right to receive com- however, were drafted before SiriusXM and Pandora were a part pensation, in effect codifying the letter of direction process. Thus, of everyone’s lives, and some even before the Internet was born. for the first time, music producers’ rights and creative contri- Attorneys specializing in this area are challenged by having butions would be acknowledged by law, and the process by to keep up with intricate differences in state and federal copyright which they would be entitled to compensation would be uniform laws and to find ways to apply old concepts to an ever-changing and consistent. industry, all while trying to figure out how to monetize their The proposed legislation demonstrates that legislatures are clients’ business in the process. A legal makeover to address actively seeking more consistency in the protection and regulation dated music laws is overdue and likely imminent, as evidenced of music amidst the industry’s evolution. Knowing whether or by proposed legislation that has received serious attention. New not your clients support these proposals and what the ultimate lawyers in the entertainment field would do well to familialize impact on their interests may be will allow you to better under- themselves with the proposed legislation. stand their business. For example, SiriusXM and Pandora have For example, the Compensating Legacy Artists for their Songs, lobbied heavily against the federal protection of pre-1972 sound Service and Important Contributions to Society Act (CLASSICS recordings while the Recording Industry Association of America, Act) was introduced by U.S. Representatives Darrell Issa of Sound Exchange, and most record labels now support such California and Jerrold Nadler of Florida in late July 2017.1 It protection. requires digital radio service providers to compensate owners of Clients nowadays are looking for attorneys who are more pre-1972 recordings when their songs are played. Currently, than just good lawyers. Using your understanding of cutting- digital stations only pay royalties for post-1972 recordings. The edge technology and being apprised of new developments will 1972 divide is due to the fact that Congress added sound record- allow you to turn the tables on more experienced lawyers and ings to the scope of federal copyright protection in 1972 but did quickly add value to your clients’ business. n not make this protection retroactive. Attorneys for copyright owners of pre-1972 recordings therefore have had to rely on 1 H.R. 3301, 115th Cong. (2017-2018). state-specific legislation to protect such recordings. This has been 2 H.R. 881, 115th Cong. (2017-2018) . the basis of a series of recent lawsuits in California, New York, and Florida spearheaded by the 1960s rock band, the Turtles, Diana Sanders is an entertainment litigator at DLA Piper. She is assistant who sued SiriusXM under the respective state copyright laws to vice president of outreach for the LACBA Barristers and a member of the recover royalties for the performance of their pre-1972 recordings. Barristers Executive Committee.

12 Los Angeles Lawyer October 2017 practice tips BY HONEY KESSLER AMADO

Exploring the Foundations of Effective Brief Writing

OUR ADVERSARIAL SYSTEM is based on the belief that “the fairest for which idea, which ideas are weak or flawed or need further results and the best rules of law are discovered by the vigorous development, and which progression of the facts or arguments presentation of opposing viewpoints.”1 In trial and appellate would be most persuasive. advocacy the primary presentation is done through written briefs, The outlining process is where the struggle with the facts and which are only as effective as they are helpful.2 The effective the law is engaged. The outline directs how to tell the story of brief is grounded in thorough research and requires outlining, the case effectively: which facts should be highlighted, which go writing, and editing. first (i.e., which must be understood before other facts will make Research identifies the essential elements of the case, which sense), and which are irrelevant. For appellate briefs, California dictate what facts need to be developed in the trial court and emphasized in the appellate brief. Research also identifies relevant case law—the cases most factually It is especially important to spend time thinking about and crafting relevant, which likely will become the core authorities for the arguments, and those directly adverse to the case, which must a statement of the issue because the one who controls the issue be discussed and distinguished.3 Research also identifies any “magic language” of an issue that appears repeatedly in pub- generally prevails. lished opinions and that, for persuasive advocacy, should appear in the briefs. This legal foundation helps to frame the core question being Rules of Court require that all factual statements be supported presented to the court. Lawyer and writer Bryan Garner calls this by references to the record.10 This rule serves two important the “deep issue.”4 He explains that the deep issue is concrete: it functions: it enables the court and opposing counsel to verify “sums up a case in a nutshell.”5 Determining the core issue leads the factual statements easily, and it “protects the court and to tighter, more cogent writing because it establishes the context opposing counsel from unfounded assertions of fact.”11 In prepar- for the facts and arguments.6 It is especially important to spend ing the outline, counsel should work closely with the record to time thinking about and crafting a statement of the issue because be scrupulously certain that the factual statements are correct. the one who controls the issue generally prevails.7 The importance For pleadings in the trial court, the commitment to stating the of properly stating the issue raised on appeal cannot be overem- facts correctly should be no less scrupulous.12 phasized.8 Indeed, some would say that they would take either As to the legal argument, the outlining phase provides an side of any case as long as they could pick the issues.9 opportunity to reconcile seemingly inconsistent cases and to dis- tinguish cases that are troublesome. In the outline, ideas may be The Outline expanded, e.g., borrowing from other areas of law to resolve an After the research and conceptualization, the actual writing issue or to suggest how the law might be developed. The outline begins with an outline. The outline is the blueprint for each is where the holes in reasoning are exposed and resolved section of the brief or memorandum of points and authorities. It is very important to avoid the temptation to take language Writing “off the top of one’s head” leads to circular arguments out of context to make a point. Concerning this precaution, and redundancy because the writing has begun before the thinking Justice Arthur Gilbert of the California Court of Appeal is com- is completed. Justice Thomas Hollenhorst of the California Court pelling. Quoting William Shakespeare, “Even ‘[t]he devil can cite of Appeal speaks of some briefs as “whirly-bird briefs,” which scripture for his purpose...,’” Justice Gilbert warns against mis- seem to start in the middle of the story and go in circles or dis- construing an opinion to make it applicable to the client’s case. connected tangents, giving the court no guidance or direction. “[S]ome misimpressions are created by the reader or critic who An outline prevents such a brief. takes a sentence or paragraph from an opinion, sometimes out The outline should begin with listing the key facts for the of context, and analyzes it as a Shakespeare scholar would, or as statement of facts and legal authorities for the argument—without though it were a verse from Holy Writ, discovering hidden mean- regard for organization. After this free-floating list is completed, ings, innuendoes, and subtleties never intended.”13 As to extending the order in which to address each point can be determined. The informal listing of the facts and arguments allows for developing Honey Kessler Amado is a certified appellate law specialist in Beverly Hills. ideas from a broad perspective. Related themes and ideas become She represents clients in state and federal courts of appeal and supreme apparent and enable critical analysis: which cases should be cited courts.

14 Los Angeles Lawyer October 2017 the holding of a case to fit an argument, It is more effective to weave a coherent relevant topic and to signal that the topic Justice Gil bert—alluding to the Cheshire story from the facts, perhaps taking bits has changed. When the reader is looking Cat of Alice in Wonderland—noted, “The from different testimony or evidence. In for that point again, the reader can easily reader who distinguishes between facts ger- an appellate brief, barring a specific reason find it. Also, headings provide natural mane to the holding and those that are not to the contrary, the order in which the facts white space on the page, giving the reader can assess the reasonable extensions of the were presented in the trial need not dictate some relief from what otherwise appears holding. A reader must realistically appraise the way the story is told. Similarly, in pre - to be dense text. Similarly, in the legal what he or she reads and resist the temp- paring legal memoranda for the trial court, argument section, headnotes should sep- tation to see a grin without a cat. Ultimately the facts can be gleaned from the supporting arate the various points in the argument.25 this approach is more effective to advance declarations or deposition transcripts, Good headnotes and subheadings serve a a client’s cause and the cause of justice.”14 although they need not be told through number of purposes. First, they give the Counsel must also beware the temptation dry references to each source. reader cues that aid comprehension. The to omit an unfavorable case, as there is an When referencing the parties, their posi- reader immediately knows the subject or obligation to cite decisions that are “directly tions must first be identified in the litigation point of the section. Second, headnotes adverse” to any proposition of law that (for example, “plaintiff” in the trial court, help make a long brief or argument digest - counsel advocates or that would be “rea- “appellant” in the review court), and there- ible. The reader is not overwhelmed with sonably important” to a judge deciding the after a name or title used that is helpful pages of text that contain no visual breaks case.15 To omit such holdings is a misrep- to telling the story. An abbreviation should and no markers indicating a new point. resentation of the law, “tantamount to mak- be defined when first used. Only well- Third, headnotes assist the writer by exposing a false statement of the law.”16 The known initial abbreviations, e.g., BofA for ing organizational weaknesses in the argu- duty to cite adverse authority is part of the Bank of America or CEO for chief execu- ment section, as well as sections with mixed attorney’s duty of candor.17 Candor includes tive officer, should be used. A false econ- ideas that need to be treated separately. the obligation to disclose legal authorities omy of abbreviations should be avoided. (In this context, it is crucial that the argu- that the court should consider when making Few things are more irritating to a reader ment under the headnote relates to that a decision “even when these authorities are or distracting to the story than getting lost headnote only. Subsections within a head- adverse to the lawyer’s position.”18 in a haze of meaningless abbreviations. If note may be employed to underscore a Some say that writing is organic.19 Out - the plaintiff is ABC Hardware Store, which discrete point or to signal a subtopic.) lining is a substantial part of that process— subleased space to XYZ Landscaping, and Fourth, headnotes serve as a useful sum- perhaps the most creative part—but surely the defendant is Able Suppliers, it will not mary of the arguments when set out in the part that prevents the paralysis induced take long before ABC is confused with the table of contents. The reader can by the blank page. Writing may be organic, XYZ or with Able and the reading slows quickly and easily see the direction and but well-organized, persuasive briefs do as the reader pauses—a second or two— key elements of the argument from the not spring from the pages without careful to recall who is who or which is which. It headnotes and subtopic headlines. thinking and planning. would be clearer and reinforces the parties When addressing a complex topic that to use shortened names like “Hard ware has its own jargon, terms must always be Drafting Store,” “Landscaping,” and “Suppliers.” defined; it should never be assumed that The act of writing—drafting—begins only As the reader of the brief is the court, the the reader is familiar with the subject. when the brainstorming and outlining is reader is the last one who should be dis- Defining terms helps the reader understand complete. The brief or memorandum of tracted, lost, or annoyed. the discussion. A simple explanation of points and authorities generally should The statement of facts should be objec- the language, concepts, or theories of the contain an introduction, a statement of tive. Compelling facts should carry the topic will add substance to the written facts, a legal argument, and a conclusion. story without vilifying or denigrating the discussion. (An appellate brief should also include a opposition or the lower court. Therefore, The conclusion should state the major statement of issues.) The introduction is a “scream ing”22 adjectives and adverbs in - points in a phrase or two in addition to summary of the position presented. It serves tended to convey an intensity of feelings or the ruling or relief being sought. For exam- to focus the reader. A good introduction indignation should be avoided. These types ple, “For the reasons stated, that the mo - should include a short summary of the of adjectives and adverbs are not persuasive. tion is untimely, that it fails to meet the critical facts, which represent the core “[O]verheated rhetoric is unpersuasive and requirements of the statutes, and that the issue, stated explicitly in terms of the per- ill-advised. Righteous indignation is no sub- relief requested is unwarranted, Peti tioner tinent legal rule or requirement, and the stitute for a well-reasoned argument.”23 requests that Respondent’s motion for answer, applying the relevant rule or rules Indeed, courts generally dislike the tenor reconsideration be denied in entirety.” Or, with a stated reason.20 The introduction of such pleadings. “Counsel violates the “For the reasons stated, that the evidence can be a few sentences but should not be cardinal rule of effective appellate legal writ- supports the factual findings of the court, longer than a few paragraphs. A long intro- ing when he or she disparages the lower that the court considered the required, duction is likely to contain too much infor- court. Even in zealous advocacy, attorneys statutory factors for granting spousal sup- mation and will have no context. In effect, are required to maintain respect to the courts port, and that the amount awarded for the court will be reading in a vacuum, of justice.”24 Similarly, it is advisable to spousal support was not an abuse of dis- which will squander the court’s attention refrain from disparaging opposing counsel cretion, Respondent requests that the Order and patience. or the opposing party. If the facts or chal- be affirmed in entirety.” The statement of facts should tell “the lenged rulings are bad, the trial or review Editing story” of the case. Everyone enjoys and court will see that without colorful adjectives re members stories. In telling the story, it is or adverbs pointing the way. The final component of clear, concise writ- not enough simply to string facts together In the declarations or statement of facts, ing is editing. This aspect, like outlining, or recite the dry testimony of each witness.21 headings should be used to indicate the can take almost as long as the initial draft.

Los Angeles Lawyer October 2017 15 The draft should be edited for clarity and 4 See Bryan A. Garner, The Deep Issue: A New Ap - Chief Justice of the Alaska Court of Appeals, stated organization. Do the central points stand proach to Framing Legal Questions, 5 SCRIBES J. LEGAL that a lawyer’s paramount duty to pursue a client’s WRITING, 1, 4 (1994-95), cited in Joseph Kimble, First interests vigorously “must be met in conjunction with, out? Does the statement of facts tell a Things First: The Lost Art of Summarizing, 8 SCRIBES rather than in opposition to, the lawyer’s other pro- coherent story? Does it include unnecessary, J. LEGAL WRITING, 103, 104 (2001-02) [hereinafter fessional obligations. Implicit in the lawyer’s role as extraneous information? If so, eliminate Kimble]. officer of the court is the general duty of candor.” (Id.) the nonessential points. To paraphrase 5 BRYAN A. GARNER, ADVANCED LEGAL WRITING AND Building on Justice Mannheimer’s idea, if the duty of Anton Chekhov: If the rifle on the wall is EDITING, §1.3 (2001) [hereinafter GARNER]. candor is an integral part of a lawyer’s obligations, 6 Id. §1.1. then one could say that the integrity of the law is the not the murder weapon, don’t discuss the 7 Karl N. Llewellyn, A Lecture on Appellate Advocacy, unspoken partner in the relationship between attorneys rifle. It makes little sense to ask the reader 29 U. CHI. L. REV. 627, 630 (1962), cited in GARNER, and clients. to retain useless information. Does the supra note 5, §1.6. 19 This author was first informed of this idea from legal argument present consistent argu- 8 Demetropoulos v. Vreeken, 754 P. 2d 960, 961 (Utah Judge Janice Rogers Brown of the U.S. Court of ments? Do they follow a reasoned pro- Ct. App. 1988). Appeals, District of Columbia Circuit, when Judge 9 gression? Are key points buried in words GARNER, supra note 5, §1.6. Brown was an Associate Justice of the California 10 See, e.g., CAL. R. CT. 8.204(a)(1)(C). Supreme Court. or presented too late in the brief? 11 Tyler v. State, 47 P. 3d 1095, 1101 (Alaska Ct. 20 Kimble, supra note 4, at 103, 104. Finally, the brief needs to be edited for App. 2001). 21 Some people say that to write a story well, one grammar and word usage. Mistakes in this 12 The trial court pleadings and the hearing or trial should read a lot. Two excellent writers of nonfiction area are irritating and can distract from comprise the universe of the appeal. If the declarations come to mind: David McCullough and Erik Larson. 22 the effectiveness of the brief. It is also are factually unreliable, the appeal is compromised “Screaming adjectives” is a phrase of the late Irving before it begins. Younger, a professor at New York University School important to edit for length, considering 13 Harris v. Superior Ct. (Smets), 3 Cal. App. 4th 661, of Law and the University of Minnesota Law School. that “[e]ye fatigue and irritability set in 666 (1992) (quoting WILLIAM SHAKESPEARE, MERCHANT 23 WorldCom Network Servs., Inc. v. Thompson, 698 26 well before page 50.” The purpose of a OF VENICE act 1, sc. 3 and citing Frank R. Kenison, N.E. 2d 1233, 1236-37 (Ind. Ct. App. 1998). brief is to enlighten the court and elucidate Some Preliminary Observations on the State Appellate 24 Downey v. Kendall, 210 Wis. 2d 496 (Ct. App. 1997) the issues.27 A well-written brief can be Judge Today, 61 COLUM. L. REV. 792, 817 (1961)). (unpublished) (per curiam) (citing In re Cannon, 206 14 Harris, 3 Cal. App. 4th at 667 (citing LEWIS CARROLL, Wis. 374, 407 (1932), disapproved on other grounds the difference between winning and losing. ALICE’S ADVENTURES IN WONDERLAND ch. 6). in State ex rel. Reynolds v. Dinger, 14 Wis. 193 (1961)). It leans towards winning when it is a plea- 15 Tyler, 47 P. 3d at 1106, discussing ABA Comm. on See Cannon for a discussion on respect for the courts sure to read. n Prof’l Ethics & Grievances, Formal Op. 280 (1949). as an important component of a civil society. 16 Tyler, 47 P. 3d at 1107 (citing ROBERT H. ARONSON 25 See CAL. R. CT. 8.204(a)(1)(B) AND ONALD ECKSTEIN ROFESSIONAL ESPONS 26 quoted in Mis takes 1 Tyler v. State, 47 P. 3d 1095, 1108 (Alaska Ct. App. D T. W , P R - Patricia M. Wald, Mark Rusk, IBILITY IN A UTSHELL to Avoid on Appeal 2001). N (2d ed. 1991)). , ABA J., Sept. 1988, at 78, and 17 N cited in RYAN ARNER HE INNING RIEF 2 Demetropoulos v. Vreeken, 754 P. 2d 960, 961 (Utah Tyler, 47 P. 3d at 1108 (citing to the ABA A - B A. G , T W B 363 Ct. App. 1988). NOTATED MODEL RULES OF PROF’L CONDUCT R. 3.3 (1996). 27 3 See Tyler, 47 P. 3d 1095 for an excellent discussion (1999) (internal punctuation omitted)). Demetropoulos v. Vreeken, 754 P. 2d 960 (Utah 18 of the duty to disclose adverse decisions. Tyler, 47 P. 3d at 1108. Justice David Mannheimer, Ct. App. 1988).

16 Los Angeles Lawyer October 2017 practice tips BY THE HONORABLE WILLIAM F. HIGHBERGER, MANUEL F. CACHÁN, AND JENNIFER L. ROCHE

Considerations for Filing a Motion to Seal

IMAGINE FOR A MOMENT THE BUSY TRIAL JUDGEwith a case load govern motions to seal and provide the basis for the practical that stretches into the hundreds , with dozens of pending sub - mechanics of sealing, i.e., how a motion to seal is properly stantive motions at any given time, many of them case-dispositive.presented to a California state court. The imagination need not be taxed, as this description ap plies In general, the First Amendment provides a right to access to to virtually every superior court judge in the more populous civil litigation documents filed in court as a basis of adjudication.1 counties of California. Budget cuts to the judiciary have increased The First Amendment right to access does not extend to “discovery the workload exponentially while reducing the number of law material that are neither used at trial nor submitted as a basis for clerks to which judges may turn for assistance with legal research. adjudication.”2 In Estate of Hearst, the California Court of Appeals Across a busy judge’s desk comes a motion that seeks to seal noted that when parties engage in civil litigation, they “employ the entirety of a simultaneously filed motion for summary judg- the public powers of the state courts to accomplish private ends” ment, along with all of its supporting exhibits. The motion is obviously boilerplate and has been submitted previously—in cases The lawyer who fails to marshal an analysis of the evidence and the of every description—by the lawyer filing it. The accompanying memorandum does not articulate the proper legal standard and applicable legal standard loses the opportunity to convince the court lacks an analysis of the factual basis for the request to seal. The counsel’s argument also fails to identify the specific sections of that the motion should prevail. the summary judgment motion and supporting exhibits that are the subject of the request to seal. The opposing counsel’s failure to contest the motion further and the “possibly disadvantageous circumstance that the docu- burdens the court’s resolution of the sealing request. If the client’s ments and records filed” will be publically disclosed.3 interests are not impacted by the proposed order to seal, the California Rules of Court 2.550 and 2.551 govern records opposing counsel likely cannot justify the time and expense sealed or proposed to be sealed by court order. These rules do involved in challenging the proposed order. The lack of oppositionnot apply to records that are required to be kept confidential by or the parties’ stipulation to the requested sealing order, however, law, such as the records of family conciliation court, in forma does not obviate the court’s duty to weigh the competing interests pauperis applications, juvenile court records, and sealed search and analyze the impact of less restrictive alternatives to seal- warrant affidavits. Parties submitting sealed materials in connection ing—a time-consuming process that often proves to be a waste with discovery motions still need to follow the same general of judicial resources, which are already taxed by matters of far processes that are used to clearly label and protect confidential greater significance. information when a sealing order is required. They must seek to This scenario is repeated many times a week in the superior redact the least amount of information necessary. Furthermore, courts of California and illustrates why ruling on motions to seal they must always remember to concurrently submit for filing in is the bane of many a trial judge. These types of motions must the public file a redacted counterpart to the item filed under seal. satisfy stringent standards in order to overcome the preference of When considering whether to seal records, courts start with American jurisprudence for open courts. Public access to judicial the presumption of public access.4 This presumption justifies the records is the bedrock legal principle that requires a court to narrow construction courts typically give to the sealing rules resolve the motion to seal independent of the litigants’ views. The and that makes sealing an extraordinary remedy. To ensure that lawyer who fails to marshal an analysis of the evidence and the a meritorious motion to seal will be granted, attorneys should applicable legal standard loses the opportunity to convince the court that the motion should prevail. The Honorable William F. Highberger is a judge in the Los Angeles Superior Thus, it is important to have a thorough understanding of the Court of California assigned to the Los Angeles Complex Civil Litigation rules and mechanics of the sealing process. To that end, there are Program. Manuel Cachán is a partner at the Los Angeles office of Proskauer certain practice pointers on motions to seal that lawyers may Rose LLP who specializes in commercial litigation, white collar defense and employ to avoid damaging a client’s case by bringing a meritless investigations, sports law, and employment litigation and arbitration. Jennifer motion that may require excessive time on the part of counsel— Roche is an associate in Proskauer’s Los Angeles office, specializing in com- not to mention the court that has to resolve the matter. The formalmercial and securities litigation, financial services, antitrust, and appellate procedures are found in the California Rules of Court, which matters.

Los Angeles Lawyer October 2017 17 pay attention to the special, narrow cir- rules. Nonconfidential portions of those personnel on whom this task falls. Once cumstances that permit sealing before agreements, however, must remain open sealed, a record may not be unsealed except deciding to bring such a motion. and accessible to the public once the con- by a court order following a party’s motion, Records may only be sealed by a court fidential data has been redacted.10 Lawyers a motion by a member of the public, or order that 1) makes specific factual findings therefore need to be judicious in their seal- on the court’s own motion.17 Further de - showing why sealing is justified and 2) ing requests and should attempt to seal tails describing the procedure to seek to limits the material sealed to necessary doc- no more than is necessary. It is an unusual seal or unseal records are found in Rule uments only, or their relevant parts.5 An case when sealing entire documents, or of Court 2.551. agreement among the parties to seal, or even whole pages, is justified. Unsealed Practice Pointers the fact that a motion to seal is unopposed, documents from separate court proceed- is not enough.6 Courts maintain an inde- ings—which are by definition already pub- In light of the burden inherent in attempt- pendent duty to ascertain whether the lically available—are not protected by the ing to seal records and the narrow circum- standards demonstrating the necessity of sealing rules at all.11 Admissions of wrong- stances under which such motions may be sealing have been satisfied. This requires doing and information regarding the iden- granted, here are some important tips to a court to find, before it can grant a sealing tity of witnesses are also generally not sub- avoid the need to file a motion to seal or, motion, that 1) there is an overriding inter- ject to sealing.12 when sealing is appropriate, to increase est to overcome the right of public access the likelihood that the motion will be The Mechanics of Sealing and 2) the proposed sealing is narrowly granted: tailored and no less restrictive means exist How is the issue of sealing properly pre- • At the outset of a case, any proposed to achieve the moving party’s interest.7 sented to a court? California Rule of protective order should recite that the Essenti ally, the party seeking to have Court 2.551, which lays out the procedure, California Rules of Court govern sealing. records sealed must establish that the infor- is the rule to look to. A party requesting This not only makes it more likely the mation should be kept secret and that the that a record be filed under seal must file court will grant the protective order but absolute minimum amount of data has a motion or application, accompanied by also puts all parties on notice that any been redacted. These twin showings must a supporting memorandum and declara- motions to seal will need to meet the strict be made on the basis of admissible evi- tion, justifying the request.13 All parties requirements those rules impose. dence—allegations alone, without facts, must be served with a copy of the motion. • It is important to be judicious in the are insufficient. Unless ordered otherwise, any party that provision of confidentiality designations. already has access to the records must be Rather than designating a whole page or Information that May Be Sealed served with a complete, unredacted version document as confidential, consideration What types of materials meet these re - of all the moving papers as well as a should be given as to whether only a word, quirements? An individual’s confidential redacted version. Any other parties to the number, sentence, or paragraph should be medical information and financial infor- suit should be served with only the public, protected. When appropriate, a party mation may be suitable for filing under redacted version of the motion.14 should be challenged and forced to justify seal. Other sensitive identifying informa- A nondesignating party that intends the designations provided. This should be tion, such as bank account numbers and to file with the court records subject to a done well enough in advance that the valid- social security numbers, are also covered. confidentiality agreement or protective ity of the designations is determined before So are actual trade secrets, as defined in order without seeking to have the records the material is needed in a filing. Civil Code Section 3426.1, with emphasis sealed must lodge unredacted copies of • If the specific material to be protected is on the word “actual.” The terms “trade the records and any moving or supporting unnecessary to the substantive motion or secret” and “confidential business infor- papers that disclose the purportedly con- other issue pending before the court, it mation” are some of the most abused bases fidential information. Simultaneously, the should not be included with the motion upon which sealing is sought, since the nondesignating party must file publically to seal. For instance, if not germane to the exception only applies to information that redacted versions of the same documents issue before the court, the confidential part is the subject of reasonable efforts to main- as well as a notice that the designating of the information should be omitted from tain its secrecy and that derives independent party has 10 days (plus additional time if the brief and redacted from any supporting economic value from the fact it is actually service is to be made via mail, electronic exhibits. Sealed or not, irrelevant evidence kept secret. service, or overnight delivery) to file a is of no value. A classic example is the Legitimate examples of trade secrets motion to seal to protect the information inclusion of a social security number on a include computer source code and certain before it will be made public.15 The pro- form in which the number itself is of no sensitive client information, like stock posi- vision of such notice is especially important evidentiary value to the issues before the tions.8 Trade secrets do not include, how- (though often overlooked) since it starts court. ever, nonspecific financial or business infor- the 10-day clock running. While it would • When filing a motion to seal, it is also mation, regardless of whether the party be helpful if there were an official Judicial important to be thoughtful in drafting the seeking to protect the information main- Council form for providing such notice, request. For example, counsel should seek tains the material is in some general sense no such form presently exists. Con se - to seal only the type of information that “commercially sensitive” or “proprietary.” quently, counsel needs to draft his or her is protectable under the law. A “Delta Do - When business information has already own notice document. c ument”—that is, a redlined comparison been disclosed in a different context, the Until the court rules on a motion to between the redacted and unredacted ver- argument that it is a trade secret loses its seal, lodged records are maintained con- sions of documents—should be lodged force, and the information cannot properly ditionally under seal. Sealed records must with the court (for the court’s use only) be sealed.9 be securely filed and kept separate from so the court can consider any proposed Confidential settlement agreements may the public file in the case,16 a process that redactions in context and without having come within the protection of the sealing imposes significant burdens on the court to physically compare the two versions.

18 Los Angeles Lawyer October 2017 • With respect to the timing of the request, a motion to seal, whenever possible, should be heard before the underlying motion to which the documents at issue are relevant. It will be difficult, if not impossible, for the court to decide the substantive motion without first deciding the accompanying motion to seal. Until the sealing motion has been ruled on, it will be unclear what evidence can be included in the record. By reviewing carefully the sealing rules and following these few simple pointers, various pitfalls commonly faced by prac- titioners may be avoided. In particular, these involve issues that arise from counsel’s filing motions to seal without marshaling the requisite evidence, articulating the proper legal standard, or thinking carefully about which discrete portions of a motion (or its supporting documents) satisfy that standard. Clients will be grateful when they dis- cover that more prudent counsel has saved them money by getting the motion right the first time. Although they may be dis- pleased at the inability to have the entirety of a particular document sealed by court order, an explanation to them about the reasons why the court would be certain to deny such a request should suffice. Also, the judge will appreciate the care taken in preparing the sealing submission, which will likely be in stark contrast to the many defective motions to seal he or she is likely to encounter routinely. The efficiency of California’s legal system will be increased by not wasting the time of busy bench officers and court personnel, leaving them free to concentrate on more pressing matters—such as deciding the case-dispositive motion that has concurrently been filed on behalf of the client. n

1 Copley Press, Inc. v. Superior Ct., 6 Cal. App. 4th 106, 111 (1992), cited with approval in NBC Subsid - iary (KNBC-TV), Inc. v. Superior Ct., 20 Cal.4th 1178, 1208-1209 n.25 (1999). 2 NBC Subsidiary, 20 Cal. 4th at 1208-09 (citations omitted). 3 Estate of Hearst, 67 Cal. App. 3d 777, 783 (1977). 4 See Cal. R. Ct. 2.550(c) 5 See Cal. R. Ct. 2.550(e). 6 See Cal. R. Ct. 2.551(a). 7 See Cal. R. Ct. 2.550(d). 8 See Overstock.Com, Inc. v. Goldman Sachs Group, Inc., 231 Cal. App. 4th 471, 505 (2014). 9 In re Providian Credit Card Cases, 96 Cal. App. 4th 292, 304 (2002). 10 See Universal City Studios, Inc. v. Superior Ct., 100 Cal. App. 4th 1273, 1285-1286 (2003). 11 Id. 12 See Huffy Corp. v. Superior Ct. (Winterthur Swiss Ins. Co.), 112 Cal. App. 4th 97, 108 (2003). 13 See Cal. R. Ct. 2.551(b). 14 Id. 15 See Cal. R. Ct. 2.551(b). 16 See Cal. R. Ct. 2.551(f). 17 See Cal. R. Ct. 2.551(h).

Los Angeles Lawyer October 2017 19 MCLE ARTICLE AND SELF-ASSESSMENT TEST By reading this article and answering the accompanying test questions, you can earn one MCLE credit. To apply for credit, please follow the instructions on the test answer sheet on page 23.

by G. Warren Bleeker

Heart of the MATTER Despite its new ruling in TC Heartland, the high court leaves “wiggle room” regarding what constitutes a “regular and established place of business”

few decades, deter- choice, even if that district falls outside of the state in which the FOR THE PAST mining venue in a defendant is incorporated. The key venue issue now being litigated patent infringement case was a fairly straightforward matter. is what constitutes a “regular and established place of business.” Under Federal Circuit precedent going back to 1990 in VE Hold - In TC Heart land, the Supreme Court did not provide any guidance ing Corporation v. Johnson Gas Appliance Company, venue was on how this phrase should be interpreted. proper in any judicial district in which the defendant was subject History of the Patent Venue Statute to the court’s personal jurisdiction.1 This past May, however, the U.S. Supreme Court revisited the issue. In a much-anticipated The Judiciary Act of 1789—the initiating federal law regarding decision in TC Heartland v. Kraft Foods Group Brands, LLC, patent suits—“permitted a plaintiff to file suit in a federal district the Supreme Court overturned the long-standing Federal Circuit court if the defendant was ‘an inhabitant’ of that district or case law and, relying on its prior precedent, held that venue is could be ‘found’ for service in that district.”3 Then, in 1887, the proper only in a judicial district in the state in which the defendant statute was amended to allow “suit only in the district of which is incorporated or “where the defendant has committed acts of the defendant was an inhabitant or, in diversity cases, of which infringement and has a regular and established place of business.”2 either the plaintiff or defendant was an inhabitant.”4 Finally, in The Court’s ruling in TC Heartland, on its face, appears to 1897, Congress enacted a patent-specific venue statute, which narrow the venue choices for patent cases previously permitted was a predecessor to the current patent venue statute, 28 USC by the Federal Circuit under VE Holding. However, the Court Section 1400(b). The predecessor statute permitted suit in the left plenty of wiggle room for patent owners asserting infringement district in which the defendant was an “inhabitant” or in which claims to continue to bring suit in the judicial district of their the defendant both maintained a “regular and established place

G. Warren Bleeker is a partner in Lewis Roca Rothgerber Christie’s intellectual property practice group in the Los Angeles office where he focuses on patent, copyright, trademark, trade secret, false advertising, and unfair competition matters. KEN CORRAL

20 Los Angeles Lawyer October 2017 of business” and committed an act of in - under Section 1391(c) and, therefore, under Cray is incorporated.23 In his written opin- fringement.5 Section 1400(b).16 ion, Judge Gilstrap discusses the state of In 1942, the Supreme Court held in In TC Heartland, in a unanimous deci- the case law regarding “regular and estab- Stonite Products Company v. Melvin Lloyd sion,17 the Supreme Court reversed the lished place of business” prior to the Fed- Com pany that the patent venue statute Federal Circuit precedent first stated in VE eral Circuit’s ruling in VE Holding. Judge was the exclusive venue provision for pat- Holding and held that venue is proper in Gilstrap notes that before VE Holding, ent infringement suits, and Congress did a patent infringement case only in a judic - courts “had developed competing and con- not intend for the patent venue statute to ial district in the state in which the defen- flicting interpretations of § 1400(b).” One “dovetail with the general provisions relat- dant is incorporated or “where the defen- court even noted that “[w]e can discern ing to the venue of civil suits.”6 Rather, dant has committed acts of infringement nothing even remotely approximating a the patent venue statute “alone should and has a regular and established place of uniform approach in the case law to the control venue in patent infringement pro- business.” problem of…[what] constitute[s] a ‘regular ceedings.”7 In 1948, Congress recodified The Court, citing Fourco, stated that and established place of business.’”24 the patent venue statute as Section 1400(b), it had “definitively and unambiguously One line of cases “held, or at least sug- and the Supreme Court reaffirmed the held that the word ‘reside[nce]’ in Section gested, that an established place of business Stonite opinion in 1957, holding in Fourco 1400(b) has a particular meaning as ap - required a physical presence in the dis- Glass Company v. Trans mirra Products plied to domestic corporations: It refers trict.”25 Judge Gilstrap notes that “[s]ome Corporation that Congress enacted Section only to the state of incorporation.”18 Fur - courts also required this physical presence 1400(b) as a standalone venue statute and ther, “Congress has not amended §1400(b) to be land the defendant owned, leased, that nothing in the 1948 recodification evi- since Fourco, and neither party asks the or controlled”26 and others “required the denced an intent to alter that status, even Court reconsider our holding in that case. physical presence to be a ‘substantial part’ the fact that 28 USC Section 1391(c) by Accordingly, the only question we must of a defendant’s business.”27 However, a “its terms” embraced “all actions.”8 answer is whether Congress changed the separate line of cases “found venue proper According to the Supreme Court in TC meaning of §1400(b) when it amended even where the defendant lacked a physical Heartland, “[t]his landscape remained §1391.”19 The Court went on to note: presence in the district.”28 These cases effectively unchanged until 1988, when When Congress intends to effect a often focused on whether a defendant’s Congress amended the general venue change of that kind, it ordinarily pro- employee, operating out of his or her home, statute, §1391(c).”9 The revised provision vides a relatively clear indication of could constitute a “regular and established stated that it applied “‘[f]or purposes of its intent in the text of the amend ed place of business.”29 venue under this chapter.’”10 The same provision. The current version of The Federal Circuit also weighed in on year, the Federal Circuit held that the §1391 does not contain any indica- this issue at that time. In its opinion in In amendment to Section 1391(c) established tion that Congress intended to alter re Cordis Corporation, the Federal Circuit the definition for all other venue statutes the meaning of §1400(b) as inter- held that “the appropriate inquiry is under the same “chapter,” including the preted in Fourco. Although the cur- whether the corporate defendant does its patent venue statute, Section 1400(b).11 rent version of §1391(c) provides a business in that district through a perma- In 2011, Congress adopted the current default rule that applies “[f]or all nent and continuous presence there and version of Section 1391, which provides venue purposes,” the version at issue not…whether it has a fixed physical pres- that its general definition applies “[f]or all in Fourco similarly provided a de - ence in the sense of a formal office or venue purposes.”12 fault rule that applied “for venue store.”30 In Cordis¸ the Federal Circuit purposes.”20 declined to issue a writ of mandamus, leav- TC Heartland Finally, the Court noted “there is no in- ing in place the District Court’s ruling that In January 2014, Kraft Foods Group dication that Congress in 2011 ratified the Cordis, a Florida corporation, could be Brands, LLC sued TC Heartland for patent Federal Circuit’s decision in VE Hold ing. sued in Minnesota.31 infringement in the U.S. District Court for In this context, we do not see any material The record established that Cordis, the District of Delaware.13 TC Heartland difference between the two phrasings.”21 which sold cardiac pacemakers, employ - moved to transfer venue to a district court ed two full-time sales representatives in Place of Business in Indiana, citing Fourco, and arguing that Minne sota.32 The sales representatives it did not “resid[e]” in Delaware and had For patent litigators, a key issue for deter- maintained home offices in Minnesota and no “regular and established place of busi- mining proper venue in light of TC Heart - stored literature, documents, and products ness” in Delaware under Section 1400(b).14 land is how to interpret “regular and in those offices. They performed adminis- The district court re jected these arguments. es tablished place of business.” If that term trative tasks in their home offices and The Federal Circuit, citing VE Holding, is construed narrowly, venue in patent claimed an income tax deduction for these denied a petition for a writ of mandamus, cases will be more restricted. However, offices. They kept between $30,000 and concluding that the general venue statute, if interpreted more broadly, proper ven ue $60,000 worth of Cordis products in their Section 1391(c), supplies the definition of post-TC Heartland might not differ home offices at any given time.33 Cordis “resides” in Section 1400(b). The Federal con siderably from venue law pre-TC also engaged a secretarial service in Minne - Circuit concluded that subsequent statutory Heartland. sota to receive messages, provide typing amendments had effectively amended In June 2017, U.S. District Judge Rod - services, mail Cordis literature, receive Section 1400(b) as construed in Fourco, ney Gilstrap, from the Eastern District of shipments of Cordis sales literature, issue such that Section 1391(c) now supplies the Texas, who reportedly handles the greatest business cards, and answer the phones as definition of “resides” in Section 1400(b).15 number of patent cases in the United “Cordis Corpor ation.”34 The Federal Cir - Thus, because the District of Delaware States,22 issued an opinion denying defen- cuit concluded that a “rational and sub- could exercise personal jurisdiction over dant Cray, Inc.’s motion to transfer the stantial legal argument may be made in TC Heartland, it “resided” in Delaware case from Texas to Washington, where support of the court’s order denying

22 Los Angeles Lawyer October 2017 MCLE Test No. 271 MCLE Answer Sheet #271 HEART OF THE MATTER The Los Angeles County Bar Association certifies that this activity has been approved for Minimum Continuing Legal Education credit by the State Bar of California in the amount of 1 hour. You may take tests from back Name issues online at http://www.lacba.org/mcleselftests. Law Firm/Organization 1. Venue is proper in a patent infringement case if the consider in determining whether the de fend ant has a case is brought in federal court in a state where a cor- regular and established place of business in the Address porate defendant is incorporated. district. City True. True. False. False. State/Zip 2. In TC Heartland v. Kraft Foods Group Brands, LLC, 11. One of Judge Gilstrap’s factors is whether a de - E-mail the U.S. Supreme Court outlined a four-factor test to fend ant has a physical presence in the dis trict. Phone determine whether a defendant has a “regular and True. State Bar # established place of business” in a state. False. True. 12. One of Judge Gilstrap’s factors is the extent to INSTRUCTIONS FOR OBTAINING MCLE CREDITS False. which the defendant derives benefits from its 1. Study the MCLE article in this issue. 3. The Federal Circuit, in VE Holding Corporation v. presence in the district. 2. Answer the test questions opposite by marking Johnson Gas Appliance Co., held that venue was True. the appropriate boxes below. Each question proper in a patent infringement case in any judicial False. has only one answer. Photocopies of this district in which the defendant was subject to the 13. One of Judge Gilstrap’s factors is whether the de - answer sheet may be submitted; however, this court’s personal jurisdiction. fendant has been sued previously in that district. form should not be enlarged or reduced. True. True. 3. Mail the answer sheet and the $20 testing fee False. False. ($25 for non-LACBA members) to: 4. A plaintiff in a patent infringement case has an 14. One of Judge Gilstrap’s factors is the extent to Los Angeles Lawyer MCLE Test automatic right to obtain discovery relating to venue. which a defendant interacts in a target ed way with True. P.O. Box 55020 existing or potential customers, con sumers, users, Los Angeles, CA 90055 False. or entities within a district. Make checks payable to Los Angeles Lawyer. 5. Under the TC Heartland holding venue is auto mat - True. i cal ly established in a district where the defend ant False. 4. Within six weeks, Los Angeles Lawyer will return your test with the correct answers, a sells an infringing product. 15. One of Judge Gilstrap’s factors is the extent to rationale for the correct answers, and a True. which a defendant represents, intern al ly or certiﬁcate verifying the MCLE credit you earned False. externally, that it has a presence in the district. through this self-study activity. 6. In In re Cordis Corporation the Federal Circuit held True. 5. For future reference, please retain the MCLE that the appropriate inquiry as to a “regular and False. test materials returned to you. established place of business” is whether the 16. One of Judge Gilstrap’s factors is wheth er the de - ANSWERS corporate defendant conducts business in that district fendant is incorporated in the dis trict. Mark your answers to the test by checking the through a perma nent, continuous presence there and True. appropriate boxes below. Each question has only not whether it has a fixed physical presence. False. one answer. True. 17. Corporations or other entities that are potential False. targets of patent infringement cases that want to 1. n True n False 7. In 1942, the U.S. Supreme Court held in Stonite make it more difficult to be sued in a parti cular state 2. n True n False Products Co. v. Melvin Lloyd Co. that the patent should consider minimiz ing their conduct in that 3. n True n False venue statute was not the exclusive venue provision state. 4. n True n False for patent infringement suits. True. True. False. 5. n True n False False. 18. A plaintiff can establish venue in a patent in - 6. n True n False 8. In 1957, the U.S. Supreme Court held in Fourco fringe ment case by proving the defendant has a 7. n True n False Glass Co. v. Transmirra Products Corporation that the regular and established place of business in that 8. n True n False patent venue statute was not altered by the general district. 9. n True n False venue statute, which includes language stating that True. it applies to “all actions.” False. 10. n True n False True. 19. Courts have taken a uniform approach in deter - 11. n True n False False. mining what constitutes a regular and established 12. n True n False 9. In TC Heartland, the U.S. Supreme Court held that place of business for patent venue purposes. 13. n True n False venue is proper in a patent infringement case only in True. 14. n True n False a judicial district in the state in which the defendant False. is incorp o rated or where the defendant committed 15. n True n False 20. Judge Gilstrap has been criticized for setting acts of in fringe ment and has a regular and estab - venue rules for patent cases in a way that may keep 16. n True n False lished place of business. many cases in his district. 17. n True n False True. True. False. 18. n True n False False. 10. Following TC Heartland, U.S. District Judge 19. n True n False Rodney Gilstrap identified four factors courts should 20. n True n False

Los Angeles Lawyer October 2017 23 Cordis’s motion to dismiss for lack of the benefits a defendant has received from rowly. A district court in the Western proper venue,” and the Court declined to its business in a particular district as a fac- District of Texas has held that venue is issue a writ.35 tor supporting a regular and established not proper even when the defendant is In his recent opinion, Judge Gilstrap place of business, especially where a defen- authorized to do business in Texas, has identifies four factors that courts should dant has generated significant revenue from distributors in Texas, and sells products consider in making the determination such business.”40 A fourth factor to con- to those Texas distributors.44 The court whether the defendant has a regular and sider is the “extent to which a defendant held that the “kind and degree of defen- established place of business in the district. interacts in a targeted way with existing dants’ contacts do not support a finding One factor is physical presence—”the or potential customers, consumers, users, that defendants have a permanent and extent to which a defendant has a physical or entities within a district, including but continuous presence which shows a regular presence in the district, including but not not limited to through localized customer and established place of business in the limited to property, inventory, infrastruc- support, ongoing contractual relationships, Western District of Texas.”45 A district ture, or people.” Thus, a “retail store, or targeted marketing efforts.”41 Judge court in the District of Arizona recently warehouse, or other facility in the district Gilstrap states that no one factor should transferred a case to North Carolina, where weighs strongly in favor of finding a regular be dispositive, and this determination the defendant is incorporated, despite alle- and established place of business” but the “should be driven by a fair consideration gations that the defendant sold infringing lack of physical building “is not disposi- of the totality of the circumstances.”42 products at Home Depot in Arizona and tive.”36 A second factor to consider is the Even though Judge Gilstrap has been had at least one sales manager and an engi- extent to which a defendant represents, criticized for purportedly “set[ting] venue neer located in Arizona.46 The court also internally or externally, that it has a pres- rules for patent cases in a way that may declined to permit discovery relating to ence in the district.37 For example, if a keep many cases in his district,”43 his venue, concluding that discovery, additional defendant has agents or representatives detailed opinion and historical look at briefing, and an evidentiary hearing “would located in a district, and represents to the how courts have interpreted the phrase be contrary to the just, speedy, and inex- public that it can communicate with the “regular and established place of business” pensive determination of the meirts of the defendant through those agents or repre- is a helpful starting point for litigators action.”47 sentatives, this factor would weigh in favor faced with determining where to file suit, Plaintiffs who have an interest in pur- of proper venue in that district.38 A third whether to challenge venue, and what suing claims against a defendant not incor- factor to consider is “the extent to which advice to give to their clients on these porated in the state in which the venue is a defendant derives benefits from its pres- issues. located should try to develop a factual ence in the district, including but not lim- In addition, other district courts, fol- record to support their choice of venue, ited to sales revenue.”39 Judge Gilstrap lowing TC Heartland, have construed the either through presuit investigation and notes that “courts have often looked to “place of business” requirement more nar- research or through early discovery, if permitted. The facts should include whether the defendant has agents or representatives physically located in the state—and the EMPLOYMENT LAW REFERRALS nature of their actions within the state, whether the defendant has any physical Paying Highest Referral Fees (Per State Bar Rules) presence in the state (e.g., buildings, ware-

houses, call centers, offices), the volume of sales in that state, if the defendant targets Honored to receive regular employment referrals from over 100 of Californiaʼs fi nest attorneys customers in that state, or has made representations about their presence in that state. On the flip side, corporations or other Stephen Danz 877.789.9707 & Associates entities who are the targets of patent Main offi ce located in Los Angeles and nearby offi ces in Pasadena, infringement cases may want to consider Orange County, Inland Empire & San Diego taking steps to minimize their conduct in Stephen Danz, Senior Partner 11661 San Vicente Boulevard, Suite 500, Los Angeles, CA 90049 states to make it more difficult to be sued in those venues. While it might be impossible or impractical for some companies to stop sales to entire states or judicial districts, they may be able to take other steps ROSS MEDIATION SERVICES to minimize conduct with certain venues. integrity u commitment u Success They could avoid setting up retail stores, Specialty aReaS warehouses, or other facilities in those districts. They could avoid retaining agents • Real Estate • Business/Commercial or representatives or call centers in those Mortgage & Lending Escrow/Title/Agency • • districts. And they could avoid or minimize • Trusts & Estates • Workplace public statements about their activities in • Construction • Multi-Party • Personal Injury • Professional Liability those districts. Ultimate ly, the question of what con- BARRY ROSS, ESQ., MBA stitutes a regular and established place of 818.840.0950 business will be litigated and decided by www.ROSSmediation.com the district courts, the Federal Circuit will review many of those decisions, and pos-

24 Los Angeles Lawyer October 2017 sibly the Supreme Court will have to weigh 20 Id. (citations omitted). Ohio 1973) (“[A]n unyielding rule that a regular and 21 in again on this issue. n Id. (citing Pure Oil Co. v. Suarez, 384 U.S. 202, established place of business cannot arise by virtue of 202-05 (1966)). a salesman operating out of his residence is at odds 22 Ryan Davis, Lawmakers Slam ‘Reprehensible’ New with the practicalities and necessities of the business 1 VE Holding Corp. v. Johnson Gas Appliance Co., Gilstrap Venue Rules, Law360, July 13, 2017, community.”)). 917 F. 2d 1574 (Fed. Cir. 1990). https://www.law360.com [hereinafter Davis]. 30 In re Cordis Corp., 769 F. 2d 733, 737 (Fed. Cir. 2 TC Heartland v. Kraft Foods Group Brands, LLC, 23 Raytheon Corp. v. Cray, Inc., No. 2:15-CV-01554- 1985). 581 U.S. ___, 137 S. Ct. 1514 (2017). JRG, 2017 WL 2813896 (E.D. Tex. June 29, 2017) . 31 Id. 3 Judiciary Act, §11, 1 Stat. 79 (1789). 24 Lace v. Lace, No. 89 C 0414, 1989 WL 103364, at 32 Id. at 735. 4 TC Heartland, 137 S. Ct. at 1518 ( citing Judiciary *2 (N.D. Ill. 1989). 33 Id. Act, §1, 24 Stat. 552 (1887) and Stonite Prods. Co. v. 25 See Raytheon, 2017 WL 2813896, at *8 (citing 34 Id. Melvin Lloyd Co., 315 U.S. 561, 563-64 (1942)). Holub Indus., Inc. v. Wyche, 290 F. 2d 852, 854 (4th 35 Id. at 737. 5 TC Heartland, 581 U.S. at ____, 137 S. Ct. at 1518 Cir. 1961)); General Radio Co. v. Superior Elec. Co., 36 Raytheon Corp. v. Cray, Inc., No. 2:15-CV-01554- (citing Patent Act, Ch. 391, 29 Stat. 695 (1897)). 293 F. 2d 949, 951 (1st Cir. 1961); Phillips v. Baker, JRG, 2017 WL 2813896, at *11-12 (E.D. Tex. June 6 Stonite, 315 U.S. at 565-66. 121 F. 2d 752, 756 (9th Cir. 1941); Warner-Lambert 29, 2017). 7 Id. Co. v. C.B. Fleet Co., 583 F. Supp. 519, 522 (D. N.J. 37 Id. at *12. 8 Fourco Glass Co. v. Transmirra Prods. Corp., 353 1984) (discussing this line of cases); Coleco Indus., 38 Id. U.S. 222, 228 (1957). Inc. v. Kransco Mfg., Inc., 247 F. Supp. 571, 574 39 Id. at 13. 9 TC Heartland, 581 U.S. at ____, 137 S. Ct. at 1519. (S.D. N.Y. 1965). 40 Id. at *13 (citing Instrumentation Specialties Co. v. 10 Id. (citing Judicial Improvements and Access to 26 Raytheon, 2017 WL 2813896, at *8 (citing Johnston Waters Assocs., Inc., No. 76 C 4340, 1977 WL 22810, Justice Act, Pub. L. No. 100-702, §1013(a), 102 Stat. v. IVAC Corp., 681 F. Supp. 959, 962 (D. Mass. at *6 (N.D. Ill. Oct. 12, 1977) (noting that the defen- 4669 (1988)). 1987)). dant had made “substantial annual sales” in the dis- 11 VE Holding Corp. v. Johnson Gas Appliance Co., 27 Raytheon, 2017 WL 2813896, at *8 (comparing trict). 917 F. 2d 1574, 1578 (Fed. Cir. 1988). Mastantuono v. Jacobsen Mfg. Co., 184 F. Supp. 178 41 Id. at *13 12 TC Heartland, 581 U.S. at ___, 137 S. Ct. at 1520. (S.D. N.Y.1960) with Coleco, 247 F. Supp. at 575). 42 Id. at *14. 13 Kraft Foods Grp. Brands LLC v. TC Heartland, 28 Raytheon, 2017 WL 2813896, at *8 (citing 43 Davis, supra note 22. LLC, No. CV 14-28-LPS, 2015 WL 4778828, at *2 Brunswick Corp. v. Suzuki Motor Co., 575 F. Supp. 44 Logantree LO v. Garmin Int’l, et al., No. SA-17- (D. Del. Aug. 13, 2015). 1412, 1424 (E.D. Wis. 1983) (“This court does not CA-0098-FB, 2017 WL 2842870, at *2 (W.D. Tex. 14 TC Heartland, 581 U.S. at ___, 137 S. Ct. at 1517. lack venue over U.S. Suzuki simply because it rents June 22, 2017) ( judgment entered No. SA-17-CA- 15 In re TC Heartland, LLC, 821 F. 3d 1338, 1341– no real estate in Wisconsin.”) and Instrumentation 0098-FB, 2017 WL 2844167 (W.D. Tex. June 22, 43 (2016). Specialties Co. v. Waters Assocs., Inc., No. 76 C 4340, 2017)). 16 Id. 1977 WL 22810, at *6 (N.D. Ill. Oct. 12, 1977) 45 Id. 17 Justice Gorsuch took no part in the consideration (emphasis is on physical presence “invite[s] games- 44 Optolum, Inc. v. Cree, Inc., No. CV-16-0328-PHX- or decision of the case. manship to avoid venue”)). DLR, 2017 WL 3130642, at *6 (D. Ariz. July 24, 18 TC Heartland, 581 U.S. at ___, 137 S. Ct. at 1520. 29 Raytheon, 2017 WL 2813896, at *8 (citing Shelter- 2017). 19 Id. Lite, Inc. v. Reeves Bros., 356 F. Supp. 189, 195 (N.D. 47 Id. (internal quotations omitted).

Los Angeles Lawyer October 2017 25 by STEPHEN F. ROHDE

PRESIDENTIAL POWER FREE PRESS

“We consider this case against the background of a profound national commitment to the principle that debate on public issues...may well include vehement, caustic, vs.and sometimes unpleasantly sharp attacks on government and public oﬃcials.” (New York Times Co. v. Sullivan, (1964))

of the 2016 First Amend ment? THE AFTERMATH presidential The political thinkers who founded America designed a gov- election has reignited a volatile constitutional issue as old as the ernment to serve as a barrier against the tyranny they had ex - republic itself: the role of a free press under the First Amendment perienced under King George III and the history of European to scrutinize the chief executive. Some may be lieve (incorrectly) despots they knew only too well. They understood that a gov - that there has never been a greater conflict between an Amer - ernment based on popular sovereignty needed to guarantee fun- ican president and the fourth estate than exists today. On his damental rights and that high among them was freedom of the first day in office, President Donald J. Trump called journalists press. In fact, foreshadowing the Declaration of Independence, “among the most dishonest human beings on earth” and a month on June 12, 1776, the Virginia House of Burgesses adopted the later he tweated that the “FAKE NEWS media” is the “enemy Virginia Bill of Rights, which declared those rights that pertain of the American people.”1 At a rally in Phoenix in August, Trump to “the good people of Virginia” and “their posterity as the basis vowed to “expose the crooked media deceptions” and accused and foundation of government,” including that “the freedom of the press of “trying to take away our history and our heritage.”2 the press is one of the great bulwarks of liberty, and can never These confrontations prompt an exami na tion of the relationship be restrained but by despotic governments.”3 between the American presidency and the press. Viewed from a The First Amendment historical and constitutional per spective, is what President Trump has said and done unprecedented among the pan theon of U.S. After winning independence, the found ers convened in Philadelphia presidents? Does the President's posture pose a “clear and present from May to September 1787 to debate and draft a new con- danger” to the First Amendment? Or is it yet another in a long stitution. The challenge they faced was how to construct a strong line of public debates about how best to serve the interests of national gov ernment with a president in charge without sacrificing the nation? What can we learn from the pres ent debate within a personal free doms. Charles Pinckney of South Carolina warned historical context about democratic processes, particularly with that “the Executive” might become “a Mon archy, of the worst respect to how the executive and judi ci al branches interpret the kind, to wit an elective one.”4 Eventually, Edmund Randolph of

Stephen F. Rohde, a constitutional lawyer and author of the books Webster’s New World American Words of Freedom and Freedom of Assembly, has served

as president of the Beverly Hills Bar Association and chair of the ACLU Foundation of Southern California and Bend the Arc: a Jewish Partnership for Justice. HADI FARAHANI

26 Los Angeles Lawyer October 2017

Virginia refused to sign the Constitution because he could not persons from “enemy” nations ineligible for naturalization. For “pro mote the estab lishment of a plan which he verily believed those enemy aliens already here, the laws authorized their depor- would end in Tyranny.”5 George Mason, the author of the tation if they were deemed “dangerous to the peace and safety Virginia Bill of Rights, joined Randolph in refusing to sign the of the United States” and their indiscriminate incarceration or proposed Con stitution, de claring that the “power and structure expulsion by presidential executive order during wartime.17 of the Government” would “end either in monarchy, or a tyran - Under the Sedition Act, which en com passed citizens and nical ari stocracy,” unless it were amended to include a Bill of noncitizens alike, persons were prohibited from assembling “with Rights.6 Among those rights Mason first listed “the Liberty of intent to oppose any measure…of the government,” and it was the Press.”7 illegal for any person to “write, print, utter, or publish…any While not a delegate to the Constitu tional Convention, Thomas false, scandalous, and malicious writ ing” against the government, Jefferson took great interest in the proceed ings. In his famous Congress or the President, “with the intent to…bring them… December 20, 1787, letter to James Madison, Jefferson argued into contempt or disrepute; or to excite against them…the hatred that “a bill of rights is what the people are entitled to against of the good people of the United States.”18 Adams justified the every government on earth, general or particular, and what no law because he claimed the opposition Republican press went just government should refuse, or rest on inference,” listing “free- to “all lengths of profligacy, falsehood and malignity in defaming dom of the press” among the most cherished of rights.8 Sam uel our government,” and demanded that the “misrepre sen tations Osgood, a Massachusetts Antifederal ist, feared that the people which have misled so many citi zens…must be discountenanced would have “very little Know ledge” of “Bribery and Corruption, by au thority.”19 Adams wielded the Sedition Act as a partisan & and an undue Use of the public Monies” in the national weapon. In a period described by Jefferson as “the reign of capital without a Bill of Rights protecting “Liberty of Speech, of witches” (al though “witch hunt” might better describe it), the the Press, of Religion, &ca.”9 Adams ad ministration issued 14 indictments under the act—all Madison, as astute a politician as he was a student of history against supporters of the op position Republican Party, including and government, heard these Antifederalist voices of oppo sition four of the five most influential Republican journals, two of loud and clear. He promised that if the Constitution were ratified which were forced to fold. Several others suspended operations (and he was elected to Congress), he would introduce a Bill of while their editors languished in jail.20 Rights. He got his way and he kept his promise.10 As he intro - Adding to its partisanship, the Sedition Act by its terms expired duced proposed constitutional amendments to the first Congress, on March 3, 1801, Adams’s final day in office. When Jefferson Madison described freedom of the press as one of the “choicest” was sworn in the next day, he sought to contrast himself with of the “great rights of mankind.”11 His first draft of what would his predecessor. In his first inaugural address, he pointedly become the First Amend ment submitted on June 8, 1789, declared reminded his audience that while “the will of the majority is in that “the freedom of the press, as one of the great bulwarks of all cases to prevail,” the “minority possesses their equal rights, liberty, shall be invi olable.”12 Eventually, through the legislative which equal law must protect and to violate would be oppres- process and ratification, those who feared the pos sibility of an sion.”21 He fa mously declared, “We are all Republicans, we are American tyranny won the debate, and the Bill of Rights became all Federalists” and said of those who would express differing the law of the land on December 15, 1791, with the First Amend - opinions, “let them stand undisturbed as monuments of the ment as the crowning achievement, guar anteeing fundamental safety with which error of opinion may be tolerated where reason rights, including freedom of the press. is left free to com bat it.” Among the “essential princi ples of our No one can study this history without understanding how Government,” upon which Jef ferson intended to base his admin- profoundly the found ers feared that a powerful national gov- istration, he began with “[e]qual and exact justice to all men, of ernment headed by a powerful execu tive could become “a whatever state or persuasion, religious or political,” and went Monarchy, of the worst kind, to wit an elective one.” They de - on to name “the diffusion of infor mation and arraignment of all manded and secured through the First Amendment the best abuses at the bar of the public reason; freedom of religion; [and] defense against tyranny in the form of a robust, unin hibited freedom of the press.” Jefferson subse quently pardoned all those press. Ac cording to constitutional scholar Leonard W. Levy, free- who were con victed under the acts. dom of the press meant “the right to criticize harshly the gov- In a lesson overlooked by future pres idents at their peril, the ernment, its officers, and its policies as well as to comment on Alien and Sedition Acts, designed as an expedient political matters of public concern.”13 By freedom of the press, “the measure, ultimately backfired. Federalists at all levels were framers meant a right to engage in rasping, corro sive, and offensive rejected, and the party soon ceased to exist. In 1840, Congress discussions on all topics of public interest” including even “foul- repaid all fines levied under the Sedition Act, declaring that the tempered, mean-spirited expres sion.”14 The very existence of act had been a “mistaken exercise” of power.22 personal lib erties depended on “the vigilance of the press in Lincoln and Disloyal Speech exposing unfairness, inequality, and injustice” and consequently, freedom of the press “had become part of the ma trix for the A month before Abraham Lincoln was inaugurated president, functioning of popular government and the protection of civil six states had seceded from the United States and established liberties.”15 The challenge was whether this grand design would the Confederacy. The country was deeply divided. In the summer work in practice. of 1861, in what historian Harold Holzer calls the “Salem Witch” hunt of the Civil War, some 200 newspapers and their editors Alien and Sedition Acts of 1798 were subjected to scattershot menacing by agencies of Lincoln’s The ink was barely dry on the Bill of Rights, when our second government, civilian mobs, and Union soldiers. Several editors president, John Adams, signed the infamous Alien and Sedition of papers aligned with the opposition Demo cratic Party were Acts of 1798.16 These repressive measures were adopted in an imprisoned at Fort Lafayette in Brooklyn, which became known atmosphere, similar to the present, of heightened nationalism, as the “American Bastille.”23 intolerance of foreigners, and fear of impending war (back then On September 24, 1862, Lincoln sus pended the writ of habeas with France). Among various nativist provisions, these acts made corpus nationwide.24 Among the estimated 13,000 to 38,000

28 Los Angeles Lawyer October 2017 imprisoned by military authorities, many, including several jour- Judge Hand found that the antiwar articles and cartoons in nalists, were arrested for expressing their political be liefs.25 By The Masses maga zine “are all within the range of opinion and of May 1863, when Lincoln learned after the fact that his critics criticism” and “fall within the scope of that right to criticize either were being arrested merely for saying things like, “anyone who by temperate reasoning, or by immoderate and indecent invective, enlists is a God Damn fool” or that “not fifty soldiers will fight which is normally the privilege of the individual in countries depen- to free Negroes,” and a news paper editor in St. Louis had been dent upon the free expression of opinion as the ulti mate source of ar rested, Lincoln instructed military officials that “unless the authority. The argument may be trivial in substance, and violent necessity” for such arrests is “manifest and urgent,” they “should and perverse in manner, but so long as it is con fined to abuse of cease.”26 According to historian Geoffrey Stone, Lincoln “did existing policies or laws, it is impossible to class it as a false state- not act decisively to prohibit such arrests” but instead deferred ment of facts of the kind here in question.”37 “to his military commanders, and allowed the arrests for seditious As far as whether The Masses willfully caused “insubordina- speech to con tinue.”27 tion, disloyalty, mu tiny, or refusal of duty in the military or naval Throughout the Civil War, an estimated 300 Democratic forces of the United States,” Judge Hand found it would interpret newspapers were shut down by military authorities—at least for the word "cause" too broadly to include “all hostile criticism, brief periods—for expressing sympathy for the enemy. Meanwhile, and of all opinion except what encouraged and supported the emboldened by what they saw their government doing with existing policies, or which fell within the range of temperate impunity, Union soldiers and vigilante citizens attacked news- argument. It would contradict the normal assumption of demo- paper offices and editors. On one occasion, the editor of the cratic gov ernment that the suppression of hostile criticism does Essex County Democrat was dragged from his home, covered not turn upon the justice of its substance or the decency and with a coat of tar and feathers, and ridden through town on a propriety of its temper.”38 rail.28 The U.S. Court of Appeals for the Second Circuit reversed In 1864, during his bid for a second term, Lincoln was faced Judge Hand on the grounds that whether or not the court was with a real case of “fake news.” A document falsely attributed satisfied that The Masses contains “matter advocating or urging to Lincoln pretended he was proclaiming a national day of trea son, insurrection, or forcible resistance to any law of the “fasting, humiliation and prayer” and calling up 400,000 new United States,” or “involves an attempt to cause insubordination, troops. Armed with broad wartime powers, Lincoln ordered dis loyalty, mutiny, or refusal of duty in the military or naval the arrest and imprisonment of the editors of the fraudulent forces” or “willfully to obstruct the recruiting or enlistment ser- proclamation.29 By and large, however, Lincoln exhibited a vice...the case would be governed by the principle that the head thick skin, even when newspapers accused him of be ing “that of a department of the government in a doubtful case will not be compound of cunning, heartlessness and folly” and castigated overruled by the courts in a matter which involves his judgment him as a “des pot,” “liar,” “usurper,” “thief,” “mon ster,” “perjurer,” and dis cretion, and which is within his jurisdic tion.”39 “ignoramus,” “swindler,” “tyrant,” “fiend,” “butcher,” and The case was not appealed to the Supreme Court, and with - “pirate.” According to Stone, “Lincoln was the most excoriated in a few days of the court of appeal decision seven of The Masses’ president in American his tory.”30 (At least until now, according editors and staff were indicted for conspiracy to violate the to some contemporary critics.) Espionage Act. By the end of the year, The Masses had ceased publi cation.40 The Censorship of Dissent During the war, the Wilson Admin istration prosecuted more Unlike Lincoln, President Woodrow Wilson had little tolerance than 2,000 dissenters on charges of disloyal, se ditious, or incen- for criticism. Once he decided to abandon his policy of neutrality diary speech and writing.41 For example, in Shaffer v. United in the Great War and seek a declaration of war, he ominously States,42 Frank Shaffer was convicted for mailing copies of a warned that “if there should be disloyalty, it will be dealt with a book, The Finished Mystery, which argued that the “war itself firm hand of stern repression” since disloyal individuals “had is wrong” and that “its prosecution will be a crime.” The Reverend sacrificed their right to civil liberties.”31 Three weeks after Clarence H. Wal dron was sentenced to 15 years in prison for Congress declared war, it began debating the proposed Espionage distributing a pamphlet questioning whether Christians are for- Act of 1917. When opposition grew to provisions that would bidden to fight in war.43 authorize press censorship, Wilson ap pealed to Congress arguing Despite these prosecutions, Wilson pushed for even more that the “authority to exercise censorship over the press...is authority to punish “disloyal” speech. Congress readily obliged absolutely necessary to the public safety.” But in a rare show of with the Sedition Act of 1918,44 which for bade any person, independence, Congress refused Wilson’s entreaties and rejected “when the United States is in war,” to utter or write any “abusive those provisions.32 Nevertheless, Wilson largely got his way and language about the form of government of the United States, or the final Espionage Act33 included a provision authorizing the the Constitution of the United States, or the military or naval postmaster general to exclude material from the mails “advocating forces of the United States, or the flag of the United States, or or urging treason, insurrection or forcible resistance to any law the uniform of the Army or Navy of the United States.”45 of the United States.”34 Wilson’s Justice Department aggressively enforced the new law. In one of the most notorious pros ecutions of the war, Post - In the most noto rious prosecutions, a newspaperman,46 a pam- master General Albert Burleson ordered the Aug ust 1917 issue phleteer47 and even prominent Socialist Eugene Debs48 were of The Masses excluded from the mail. The Masses was a monthly convicted and sent to jail for criticizing the government. At journal of socialist politics featuring prom inent writers including first, even enlightened jurists like Supreme Court Justices Oliver Max Eastman, John Reed, Vachel Lindsay, Emma Goldman, Wendell Holmes, Jr. and Louis Brandeis joined in upholding Carl Sandburg, and Bertrand Russell.35 The Masses immediately each of these convictions.49 Within a few months, however, they went to court and won a temporary injunction from U.S. District changed their minds. In words that would come to be seen as a Judge Learned Hand who ruled that the law could not be construed damning epitaph for Wilson’s systematic violation of freedom to al low “the suppression of all...criticism, and all opinion except of speech and the press, in one of the most influential dissents what encouraged and supported the existing policies.”36 in the Court’s history, which Brandeis joined, Holmes wrote

Los Angeles Lawyer October 2017 29 that “the best test of truth is the power of the thought to get it - authority to force the newspapers to suspend publication of any self accepted in the com petition of the market....”50 Indeed that classified information to prevent alleged “irreparable injury to is the theory—”the experiment”—of our Constitution.51 “While the defense interests of the United States.”59 that experiment is part of our system I think that we should be On June 30, 1971, in a historic 6-3 de cision in New York eternally vigilant against attempts to check the expression of Times v. United States, the U.S. Supreme Court rejected Nixon’s opinions we loathe and believe to be fraught with death....”52 arguments and upheld the right of the newspapers to publish Indeed, more than a century after Con gress righted the the Pentagon Papers.60 In his concurring opinion, Justice Hugo wrong created by the Alien and Sedition Acts, in the seminal Black wrote that in “the First Amendment the Founding Fathers First Amendment case of New York Times v. Sullivan, the U.S. gave the free press the protection it must have to fulfill its essential Supreme Court declared, “Although the Sedition Act was never role in our democracy. The press was to serve the governed, not tested in this Court, the attack upon its validity has carried the the governors. The Government’s power to censor the press was day in the court of history.”53 In 1964 the Supreme Court was abolished so that the press would remain free to censure the called upon to review a $500,000 libel judgment which L.B. Government. The press was protected so that it could bare the Sullivan, the Mont gomery Alabama city commissioner, had secrets of government and inform the people. Only a free and won against a group of civil rights leaders who had taken out unrestrained press can effectively expose deception in govern- a full page ad in The New York Times, criticizing Sullivan for ment.”61 As Justice Black saw it, in “seeking injunctions against his actions against Dr. Martin Luther King Jr. and other civil these newspapers...the Executive Branch seems to have forgotten rights activists. the essential purpose and history of the First Amendment,” which Speaking for the majority of the Court in reversing the judg- entrusted a free press with “the duty to prevent any part of the ment, Justice William J. Brennan Jr declared in words that have government from deceiving the people and sending them off to come to represent a cornerstone of First Amendment law when distant lands to die of foreign fevers and foreign shot and shell.”62 it comes to the role of the press in criticizing elected officials: Justice Black insisted that to “find that the President has ‘inherent “[There is] a profound national com mitment to the principle power’ to halt the publication of news by resort to the courts that debate on public issues should be uninhibited, robust, and would wipe out the First Amendment and destroy the fundamental wide-open, and that it may well include vehement, caustic, and liberty and security of the very people the Government hopes to sometimes unpleasantly sharp attacks on government and public make ‘secure.’”63 Likewise, Justice William O. Douglas noted officials.”54 It is against this “profound national commitment” that the “dominant purpose of the First Amend ment was to pro- that the current attacks on the press from the high est office in hibit the wide spread practice of governmental suppres sion of the land need to be judged. embarrassing informa tion.”64 Justices Potter Stewart and Byron White reminded us that in: Nixon and the Pentagon Papers [T]he absence of the governmental checks and balances pre- It was Republican President Richard M. Nixon, however, not sent in other areas of our national life, the only effective Trump, speaking to the Joint Chiefs of Staff in 1972, who first restraint upon executive policy and power in the areas of charged that the “press is the enemy.” Nixon’s hostility to the national defense and international affairs may lie in an press was legendary and culminated in his failed attempt to enlightened citizenry—in an informed and critical public impose an unconstitutional prior restraint on the publication of opinion which alone can here protect the values of democratic the Pentagon Papers. From the earliest days of his career, Nixon government. For this reason, it is perhaps here that a press blamed the press for his political setbacks. When he lost the that is alert, aware, and free most vitally serves the basic 1962 gubernatorial race in California, he famously (but incorrectly) purpose of the First Amend ment. For without an informed told the press they would not “have Nixon to kick around any- and free press there cannot be an enlightened people.65 more.” Amid fears that Apollo 11 astronauts had returned from The justices’ forceful admonitions that under the First Amend - the moon with deadly germs, Nixon told a foreign leader he ment the press had a duty to hold presidents and other elected would like to send “contaminated” moon rocks to his critics in officials accountable would prove pre scient, since less than a the press.55 During the Watergate scandal, it was revealed that year later, Nixon’s presidency would be brought down by the Nixon kept an “enemies list” of his political opponents, including Watergate scandal, in which the press played its vital role in Daniel Schorr, an Emmy award-winning journalist for CBS News, baring the secrets of government, informing the people, and who had been secretly investigated by the FBI during the Nixon exposing Nixon’s deceptions. Administration.56 Television news anchor Walter Cronkite was convinced that Writing for The Atlantic during the height of the Nixon years, the Nixon admin istration attacked the news media “to raise the journalist David Wise argued that Nixon saw television as a credibility of the Administration. It’s like a first-year physics “conduit” to deliver his message to the public, not as an inde- experiment with two tubes of water—you put pressure on one pendent form of “electronic journalism.” According to Wise, side and it makes the other side go up or down.”66 History has the “moment that television analyzes his words, qualifies his shown that Nixon lost that experiment. remarks, or renders news judgments, it becomes part of the The Current Climate ‘press,’ and a political target.”57 By applying “constant pressure, in ways seen and unseen, the leaders of the government have There is no evidence that President Trump has seriously studied attempted to shape the news to re semble the images seen through the presidencies of Adams, Lincoln, Wilson, and Nixon, in general, the prism of their own power.”58 or the damaging consequences of their hostility toward freedom Nixon’s most overt exercise of presi dential pressure to shape of the press, in particular. Ignoring the cautionary tales posed by the news came in 1971, during the Vietnam War, when he sought these four presidents, any successor, including Trump, runs the to restrain The New York Times and the Washington Post from risk of repeating their mistakes apparently oblivious to the fact publishing the Pentagon Papers, a history of American involvement that in each case the judgment of history condemned their unwar- in Vietnam from 1945 to 1967 prepared by the U.S. Department ranted attacks on the press. of De fense. Citing the Espionage Act, Nixon claimed executive In this climate of concern about First Amendment issues and

30 Los Angeles Lawyer October 2017 freedom of the press, in particular, within days of Trump’s inau- Richard Silverstein.81 Charged under the Espionage Act, he took guration, Stanford University gathered several of its leading scholars a plea deal in 2009 and was sentenced to 20 months in prison. to discuss the new president’s relationship with the media.67 James Leibowitz said he had provided Silverstein with evidence that the Hamilton, professor of commun i ca tions and director of the Stan- FBI “was committing illegal acts,” and Silverstein later revealed ford Journ alism Program, noted that the disdain for the press that Leibowitz had given him transcripts of secretly wiretapped President Nixon expressed in private is “exactly the type of vitriol con versations at the Israeli embassy in Washington, D.C.82 that Trump uses in public.”68 On his first full day in office, Trump Stephen Kim was a State Department contractor accused of said in an address to the CIA, “I have a running war with the leaking information about North Korea’s nuclear program to Fox media. They are among the most dishonest human beings on News reporter James Rosen in 2009.83 After fighting the case for Earth.”69 According to Hamilton, the belief that the media is the years, Kim took a plea deal in 2014 and was sentenced to 13 enemy was the undoing of Nixon, and the “danger for the Trump months in prison.84 ad ministration is that a similarly callous view of democratic insti- Jeffrey Sterling, a former CIA agent, was accused of leaking “[To] ﬁnd that the President has ‘inherent power’ to halt the publication of news by resort to the courts would wipe out the First Amendment….”—Justice Hugo Black. tutions can ulti mately lead to violations of laws, including those information about the CIA’s botched attempts to disrupt Iran’s govern ing conflicts of interest.”70 nuclear program to New York Times reporter James Risen in As another participant, Theodore Glas ser, also a professor of 2005.85 In 2011, as the Obama admin istration ramped up its war communi cations, sees it, an “oppositional press—an adversarial on leakers, Sterling was indicted under the Espionage Act. In press—is a vitally important tradition in American politics” because 2015, Sterling was convicted of violating the Espionage Act and “the job of the journalist…is to create and sustain the public con- sentenced to three and a half years in prison.86 versation democracy demands.”71 For Hamilton, the media’s job Donald Sachtleben, a former FBI agent, was accused of con- today is clear: “Give people an accurate picture of government firming information about a foiled terrorist plot in Yemen to actions, show your work and make it transparent about how you Asso ciated Press reporters in 2012 after the DOJ secretly seized verified your facts, and be willing to risk ridicule and censure and two months’ worth of AP reporters’ work phone, cell phone and sur veillance and arrest by public officials who prefer supremacy home phone records.87 News outlets and journalism groups con- to scrutiny.”72 demned this invasion of journalists’ privacy, and A ttorney General Will the press serve as the bulwark the founders intended Eric Holder later agreed to adopt new internal DOJ regulations against a potentially ty rannical executive? Will it “criticize harshly limiting when the department could seize reporters’ com muni - the government, its officers,” and “engage in rasping, corrosive, cations. Sachtleben pleaded guilty in 2013 to violating the and offensive discussions on all topics of public interest.”73 The Espionage Act.88 very existence of personal liberties depends on “the vigilance of In addition to charging journalists’ sources under the Espionage the press in exposing unfairness, inequality, and in justice.”74 Act, both the Obama and Trump administrations have explored In December, 2016, a New York Times article predicted that if the possibility of using the law directly against journalists. In 2010, “Donald J. Trump decides as president to throw a whistle-blower as part of its investigation into Stephen Kim in 2010, Obama’s in jail for trying to talk to a reporter, or gets the FBI to spy on a DOJ obtained a search warrant for Fox News reporter James journa list, he will have one man to thank for bequeathing him Rosen’s private e-mail. In an affidavit supporting the search warrant, such expansive power: Barack Obama.”75 During the Obama an FBI agent accused Fox News reporter Rosen of conspiring to administration, in addition to the much-publi cized prosecutions violate the Es pionage Act. “There is probable cause to believe that of Edward Snow den76 and Chelsea Manning,77 the Depart ment the Reporter has committed a violation of 18 U.S.C. § 793 (Un - of Justice brought charges against six other people accused of author ized Disclosure of National Defense In form ation), at the leaking information to the media—Thomas Drake, Shamai very least, either as an aider, abettor and/or co-conspirator of Mr. Leibowitz, Stephen Kim, Jeffrey Sterling, Donald Sachtleben, and Kim,” FBI special agent Reginald Reyes wrote in an affidavit, John Kiriakou.78 shocking freedom of press groups at the time.89 Thomas Drake, a senior executive at the National Security John C. Kiriakou was the first CIA of ficer to be imprisoned Agency, who started his job on September 11, 2001, repeatedly for leaking classified information to a reporter and served com plained about waste and lack of priv acy protections at NSA.79 nearly two years in federal prison in Pen nsylvania.90 As a CIA In 2005, he allegedly started talking to Siobhan Gor man, a reporter analyst and a counter terrorism officer from 1990 to 2004,91 he for The Baltimore Sun, and provided her with unclassified docu- helped lead the operation that captured Abu Zubaydah, an ments for a story detailing how the NSA wasted hundreds of alleged Al Qaeda militant. In a 2007 interview with ABC News, millions of dollars on a spying program that infringed on Ameri- Kiriakou became the first former CIA official to publicly discuss cans’ privacy. In 2010, a grand jury for mally indicted Drake under the agency’s use of waterboarding, a suf focation technique with the Espio nage Act, not for providing classified infor mation to any- a prominent place in the history of torture. Documents later one, since he only shared unclassified inform ation with Gorman, showed that other CIA operatives subjected Abu Zubaydah to but for taking a few classified documents home. Just before the water boarding 83 times.92 case was set to go to trial in June 2011, the DOJ dropped all charges Kiriakou was charged in 2012 with dis closing classified infor- in ex change for Drake’s pleading guilty to a misdemean or.80 mation to journ alists.93 In a plea deal, he later admitted to one of A month after Drake was originally indicted, Shamai Leibowitz, the leaks, viz. he had disclosed the name of an undercover CIA a linguist at the FBI, was accused of leaking infor mation to blogger officer to a freelance journalist, Matthew Cole, though Cole did

Los Angeles Lawyer October 2017 31 not pub lish the name. Kiriakou has been to put “some people in jail” for disclosing has systematically tried to delegitimize the institutions em braced as a whistle-blower by civil liberty classified information.101 that hold him accountable—courts, prosecutors, inves- tigators, the media,...journalism remains an indispens- advocates and government critics who say As the founders understood and subse - able constraint on power” and serves as “a bulwark he was punished for speaking out about quent history has tragically confirmed, dis- of democracy” by providing an institutional check on CIA torture.94 crediting and stifling the press and aban - powerful leaders.). “I have maintained from the day of my doning the truth are hallmarks of the rise 3 THE AMERICAN REPUBLIC: PRIMARY SOURCE 158 (Bruce arrest that my case was never about leak- of authoritarian governments.102 A key Frohnen ed., 2002). 4 ing,” he said. “My case was about tor ture. characteristic of such governments is con- 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 64-65 (Max Farrand ed., 1911) [hereinafter Fa rrand]; 103 The CIA never forgave me for talk ing about trol of the mass media. While the re - Paul Finkelman, Between Scylla and Char bydis: torture.” He said he felt vin di cated when spons ibility for upholding democratic prin- Anarchy, Tyranny, and the Debate Over a Bill of Senator Dianne Feinstein of California, as ciples and checking the abuse of power Rights in THE BILL OF RIGHTS: GOVERNMENT PROSCRIBED chairwoman of the Senate Intelligence ultimate ly rests with We the People, the 103-74 (Ronald Hoffman & Peter J. Albert eds., 1997). 5 Committee, de nounced the CIA’s former public depends on independent institutions, Farrand, supra note 4, at 564. 6 Id. at 631-32 (vol. 2). interrogation program and described the in cluding the courts, opposing political 7 Id. at 640 (vol. 2). committee’s 6,000-page re port that said it parties, the forces of dissent, and a robust, 8 Letter from Thomas Jefferson to James Madison, in 95 was mismanaged and ineffective. courageous, unrelenting press. The teach - 12 THE PAPERS OF THOMAS JEFFERSON 438, 440 (Julian Obama argued that the number of leak ings of history are clear: in their own time, P. Boyd et al. eds., 1950). prosecutions his administration had brought Adams, Lincoln, Wilson, and Nixon, blind - 9 Letter from Samuel Osgood to Samuel Adams, in 15 THE DOCUMENTARY HISTORY OF THE RATIFICATION was small and that some of the cases were ed by fear and ambition, made the mis - OF THE CONSTITUTION 263-67 (Merrill Jensen et al. inherited from the George W. Bush ad- take of treating the press as their enemy— eds., 1976). ministration. But he asserted that some in- although this was not always clear to their 10 LEONARD W. LEVY, ORIGINS OF THE BILL OF RIGHTS volved purposeful leaks of information contemporaries, who themselves were often 117 (1999) [hereinafter LEVY]. that allegedly could harm or threaten oper- blinded by fear and superficial calls to 11 Id. at 117. 12 ations or individuals who were in the patriotism. If only more people had seen Id. at 282. 13 Id. at 123. 96 field. However, in a 2013 report for the it while it was happening. If only Lincoln 14 Id. at 123-24. Com mittee to Protect Journalists, Leonard had learned from Adams, and Wilson had 15 Id. at 125. Downie, former ex ecutive editor of the learned from both of them, and Nixon 16 Naturalization Act, ch. 54, 1 Stat. 566 (1798); Alien Wash ington Post who now teaches at Ariz- had learned from the rest. If only Trump Enemy Act, ch. 58, 1 Stat. 570 (1798); Alien Friends ona State University, said Obama’s war on learns from all of them. n Act, ch. 58, 1 Stat. 577 (1798); An Act for the Punishment of Certain Crimes Against the United leaks and other efforts to control informa- States (Sedition Act), ch. 74, 1 Stat. 596 (1798) [here- tion was “the most aggressive I’ve seen since 1 See, e.g., Donald J. Trump@real Donald Trump, inafter Sedition Act]. the Nixon administration, when I was one Twitter (Feb. 17, 2017). The full tweet reads: “The 17 GEOFFREY R. STONE, WAR AND LIBERTY: AN AM- of the editors involved in the Washing ton FAKE NEWS media (failing @nytimes, @CNN, @NBC ERICAN DILEMMA: 1790 TO THE PRESENT 5 (2007) [here- Post’s investigation of Watergate.”97 and many more) is not my enemy, it is the enemy of inafter STONE]. the American people. SICK!”; Jonathan Lemire, Trump, 18 Sedition Act, supra note 16. “Obama has laid all the groundwork in unprecedented fashion for a president, rips press, 19 Letter from John Adams to the Mayor, Alderman, Trump needs for an unprecedented crack- Associated Press, Feb. 17, 2017, available at https: and Citizens of Philadelphia, in 9 WORKS OF JOHN down on the press,” said Trevor Timm, //apnews.com/60a22e93df684 f0ebaaaec63e5 e68147 ADAMS 182 (Charles Francis Adams ed., 1854); John executive director of the nonprofit Free- /trump-unprecedented-fashion-president-rips-press; Adams, Answer: To the Citizens of Newark, in the dom of the Press Foundation. It is asserted Jason Fuller, Trump’s Unprece dented War on the First State of New Jersey, GAZETTE OF THE UNITED STATES Amendment Has Gone Nuclear, Huffington Post, Feb. that large-scale leaks by former U.S. Army 2 (May 2, 1798). 26, 2017, available at http://www.huffingtonpost 20 STONE, supra note 17, at 12. soldier Manning and later by NSA subcon- .com/entry/trumps-unprecedented-war-on-the-first 21 President Thomas Jefferson, First Inaugural Address tractor Snowden, prompted the Obama -amendment-has_us_58b26916 e4b0658fc20f9672; (March 4, 1801), The Avalon Project, Yale Law School, administration to adopt a zealous, prose- The Times Editorial Board, The Trouble with Trump, available at http://avalon.law.yale.edu/19th_century cutorial approach toward all leaking.98 L.A. TIMES, Apr. 2-7, 2017, available at http: //www /jefinau1.asp (last viewed July 13, 2017). .latimes.com (On his first day in office, Trump called 22 According to Risen, press freedom advocates CONG. GLOBE, 26th Cong. 1st Sess. 411 (1840). See journalists “among the most dishonest human beings 26 H.R. 80, 26th Cong., 1st Sess. 86 (1840). are fearful that if a Trump DOJ continues on earth” and regularly condemned legitimate reporting 23 David S. Reynolds, ‘Lincoln and the Power of the to aggressively pursue journalists and their as “fake news.” “His administration has blocked main- Press,’ by Harold Holzer, N.Y. TIMES, Oct. 31, 2014 sources, it is because “Obama handed him stream news organizations, including The [L.A.] Times, (reviewing HAROLD HOLZER, LINCOLN AND THE POWER a road map.”99 from briefings and his secretary of state chose to travel OF THE PRESS: A WAR FOR PUBLIC OPINION (2014)), to Asia without taking the press corps, breaking a Peter Sterne, Senior Reporter for the available at https://www.nytimes.com [hereinafter longtime tradition.”); The Times Editorial Board, Reynolds]. Freedom of the Press Foundation, has stated Trump’s War on Journal ism, L.A. TIMES, Apr. 5, 2017, 24 Abraham Lincoln, Proclamation Suspending the that “the Espionage Act prosecutions of available at http://www.latimes.com. The media have Writ of Habeas Corpus, Sept 24, 1862, in 5 THE journalists’ sources have continued under observed that by undermining trust in news organiza- COLLECTED WORKS OF ABRAHAM LINCOLN 436-37 (Roy the administration of President Donald tions, “delegitimizing journalism,” and “muddling the P. Basler, ed., Rutgers 1953) [hereinafter LINCOLN]. Trump and only look to get worse.”100 facts so that Americans no longer know whom to 25 STONE, supra note 17, at 31-32. believe, he can deny and distract and help push his 26 Id. Trump has, on an almost weekly basis, administration’s far-fetched storyline.” (Id. (citing Art 27 Id.; MARK E. NEELY JR., THE FATEOF LIBERTY: called for leak investigations into news Swift, Americans’ Trust in Mass Media Sinks to New ABRAHAM LINCOLNAND CIVIL LIBERTIES 60 (1991); reports about his administration and At - Low, GALLUP, Sept. 14, 2016, available at http://www Abraham Lincoln: Military Arrests, May 17, 1861, torney General Jeff Sessions has indi cated .gallup.com/poll /195542)). in 4 LINCOLN, supra note 24, at 372. 2 that the DOJ wants to increase the prose- Mark Landler & Maggie Hageman, At Rally, Trump 28 STONE, supra note 17, at 38. Blames Media for Country’s Deepening Divisions, 29 cution of journalists’ sources. “We are going Reynolds, supra note 23. N.Y. TIMES, Aug. 22, 2017, available at https://www - 30 STONE, supra note 17, at 38-39. to step up our efforts and already are step- .nytimes.com. See also Nicholas Kristof, We're Journal - 31 PAUL L. MURPHY, WORLD WAR I AND THE ORIGINS OF ping up our efforts on all leaks,” Sessions ists, Not the Enemy, N.Y. TIMES, Aug. 24, 2017, at CIVIL LIBERTIES IN THE UNITED STATES 53 (Norton 1979). said in April 2017, adding that he wants A23 (Columnist Nicholas Kristof notes that as “Trump 32 Wilson Demands Press Censorship, N.Y. TIMES

32 Los Angeles Lawyer October 2017 (May 23, 1917) at 1 (quoting a letter from Woodrow (E.D. Va. June 14, 2013). See also Katherine Feuer, Pro - Wilson to Rep. Webb) . tecting Government Secrets: A Comparison of the Espion- 33 18 U.S.C. §§791 et seq. age Act and the Official Secrets Act, 38 B.C. INT’L & 34 H.R. Rep. No. 65, on H.R. 291, 65th Cong., 1st COMP. L. REV. 91, 105 (2015) [hereinafter Feuer]. Sess., 55 Cong. Rec. H.R. 3124, 3129 (May 29, 1917); 77 See, e.g., Mark Norris, Bad "Leaker" or Good 65th Cong., 1st Sess., in 55th Cong. Rec. H.R. 3306 “Whistle blower”? A Test, 64 CAS. W. RES. L. REV. (June 7, 1917). 693 (2013) [hereinafter Norris]. Since Chelsea Man - 35 STONE, supra note 17, at 52. ning was serving in the U.S. military, the matter was 36 Masses Publ’g Co. v Patten, 244 F. 535, 539-40 handled internally. (S.D. N.Y. 1917). 78 Peter Sterne, Obama Used the Espionage Act to 37 Id. at 539. Put a Record Number of Reporter’s Sources in Jail 38 Id. at 539-40. and Trump Could Be Even Worse, Freedom of the 39 Masses Publ’g Co. v Patten, 246 F. 24, 35, 36 (2d Press Found., June 21, 2017, available at https:// Cir. 1917). freedom.press/news/obama-used-espionage-act-put 40 STONE, supra note 17, at 54. -record -number-reporters-sources-jail-and-trump-could 41 Id. -be-even-worse [hereinafter Sterne]. 42 Shaffer v. United States, 255 F. 886 (9th Cir. 1919). 79 United States v. Drake, 818 F. Supp. 2d 909 (D. 43 STONE, supra note 17, at 55. Md. 2011). 44 Sedition Act of 1918, Pub. L. 65–150, §3, 40 Stat. 80 For greater detail on the Drake case, see, e.g., Norris, 553 (1918). supra note 77, at 699. 45 Id. See also STONE, supra note 17, at 57. 81 United States v. Leibowitz, No. AW-09-CR-0632 46 Frohwerk v. United States, 249 U.S. 204 (1919). (D. Md. Dec. 4, 2009). 47 Schenck v. United States, 249 U.S. 47 (1919). 82 Sterne, supra note 78. 48 Debs v. United States, 249 U.S. 211 (1919). 83 United States v. Kim, 808 F. Supp. 2d 44, 55 (D.D.C. 49 It was in his opinion for a unanimous Court in 2011). Schenck, that Holmes wrote one of the most memorable 84 Sterne, supra note 78. (and oft misquoted) sentences in Supreme Court history: 85 United States v. Sterling, 724 F. 3d 482, 509 (4th “The most stringent protection of free speech would Cir. 2013); see also Risen v. United States, 134 S. Ct. not protect a man in falsely shouting fire in a theater, 2696 (2014). and causing a panic.” Schenck, 249 U.S. at 52. Pundits 86 Sterne, supra note 78. usually overlook that in Holmes’s hypothetical, the 87 United States v. Sachtleben, No. 1:12-cr-0127 WTL- speech was both false and actually caused a panic. Stone KPF (S.D. Ind. Sept. 23, 2013), available at http://www asks, “Suppose the ‘cry of fire’ were true? Would it still .justice.gov/iso/opa/resources/76420139231545276182 be punishable? If not, does that suggest a possible error .pdf. in Holmes’s reasoning?” STONE, supra note 17, at 59. 88 Sterne, supra note 78. 50 Abrams v. United States, 250 U.S. 616, 630 (1919). 89 Id. 51 David Wise, The President and the Press, THE ATLAN - 90 United States v. Kiriakou, No. 1:12cr127 (LMB) TIC, Apr. 1973, available at https://www.theatlantic (E.D. Va. Aug. 8, 2012); see also Feuer, supra note 76. .com/magazine/archive/1973/04/the-president-and-the 91 Scott Shane, Former C.I.A. Officer Released After -press/305573 [hereinafter Wise]. Nearly Two Years in Prison for Leak Case, N.Y. 52 Abrams, 250 U.S. at 630. TIMES, Feb. 9, 2015, available at www.nytimes.com 53 New York Times v. Sullivan, 376 U.S. 254, 276 [hereinafter Shane]. (1964). 92 Id. 54 Id. at 270. 93 Kiriakou, No. 1:12cr127 (LMB). 55 Wise, supra note 51. 94 Shane, supra note 91. 56 Robert D. Hersey, Jr., Daniel Schorr, Journalist 95 Id. Dies at 93, N.Y. TIMES, July 23, 2010, available at 96 Risen, supra note 75. www.nytimes.com. 97 Leonard Downie, Jr., and Sara Rafsky, The Obama 57 Wise, supra note 51. Administration and the Press, Comm. to Protect Journ - 58 Id. al ists (Oct. 10, 2013), https://cpj.org/reports/2013/10 59 David W. Dunlap, 1971, Supreme Court Allows /obama-and-the-press-us-leaks-surveillance-post-911 Publication of Pentagon Papers, N.Y. TIMES, June 30, .php. 2016, available at www.nytimes.com. 98 Id. 60 New York Times v. United States, 403 U.S. 713 99 Risen, supra note 75. (1971). 100 Sterne, supra note 78. 61 Id. at 717 (Black, J, concurring). 101 Tom Porter, U.S. 'Prepares Charges' Against 62 Id. at 716-17. WikiLeaks Founder Julian Assange, NEWSWEEK , Oct. 63 Id. at 719. 21, 2017, available at https://www.google.com/amp 64 Id. at 723-24 (Douglas, J., concurring). /www.newsweek.com/julian-assange-wikileaks-trump 65 Id. at 728 (Stewart, J., and White, J., concurring). -jeff-sessions-russian-hacking-587251%3famp=1. 66 Wise, supra note 51. 102 Lawrence Britt, The 14 Defining Characteristics of 67 Alex Shashkevich, Stanford experts on President Fascism, FREE INQUIRY, Spring 2003, available at Trump and the media, STANFORD NEWS, Jan. 30, 2017, http://www.rense.com/general37/fascism.htm. Other available at http://news.stanford.edu [hereinafter Shash - characteristics that resonate ominously today are pow- kevich]. erful and continuing nationalism, disdain for human 68 Id. rights, identification of enemies/scapegoats as a unifying 69 Id. force, supremacy of the military, rampant sexism, 70 Id. obsession with national security, religion and govern- 71 Id. ment are intertwined, corporate power is protected, 72 Id. labor power is suppressed, disdain for intellectuals and 73 LEVY, supra note 10, at 123-24. the arts, obsession with crime and punishment, rampant 74 Id. cronyism and corruption, and fraudulent elections. 75 James Risen, If Donald Trump Targets Journalists, 103 Robert Reich, Trump’s Seven Techniques to Control Thank Obama, N.Y. TIMES, Dec. 30, 2016, available the Media, Moyers & Company, Dec. 1, 2016. http: at www.nytimes.com [hereinafter Risen]. //billmoyers.com/story/trumps-seven-techniques-control 76 United States v. Snowden, No. 1:13 CR 265 (CMH) -media

Los Angeles Lawyer October 2017 33 by KARL RUTLEDGE AND MARY TRAN GAMESPLAYING

A promotional offering that becomes a viral hit can signiﬁcantly alter, either positively or negatively, the fortunes of a company

limitless access promotion if deemed necessary” and limited gambling prohibitions, consumer protec- A LMOST to the Inter net the code to being valid for only 24 hours.2 tion requirements such as necessary official and social media have brought a new age Sunny Co ultimately decided to honor only rules provisions, and state registration and for companies not only to publicize in - the first 50,000 entries as opposed to award- bonding requirements. formation on their products and services ing a swimsuit for each repost. Gambling in the United States but also countless ways to connect with While the viral nature of the promotion the public, improve customer relations, presented complications—disgruntled cus- The federal government traditionally has and strengthen their brands. A viral hit— tomers due to the high volume of orders, not played a major role in the regulation whether intended or not—can significantly order backlog, and changing the terms after of gambling. Instead, regulation has been alter, either positively or negatively, the the promotion started—it also took a rel- viewed as more appropriate for state and fortunes of a company. atively unknown company and brought it local jurisdictions. Accordingly, with only For instance, a clothing company called to national prominence (e.g., news reports a few notable exceptions (e.g., the federal Sunny Co recently promised its customers as well as countless memes on social media Wire Act), rather than preempting state free1 swimsuits if they reposted an Insta - mocking the participants and the company’s gambling laws, federal laws that govern gram image of a model in one of their poor management of the promotion). Time gambling crimes were designed to aid indi- swimsuits and tagged Sunny Co. Pre dic - will tell whether the ultimate effects of this tably, the notion of receiving an approxi- promotion will have a positive or negative Karl Rutledge is a partner, and Mary Tran an asso- mately $65 item for free was very popular. impact on the brand. ciate, in Lewis Roca Rothgerber Christie’s gaming In fact, it was so popular that the company The lesson to learn from the Sunny Co practice group in the firm’s Las Vegas Office. was forced to post an Instagram update promotion as well as countless other pro- Rutledge’s practice focuses on Internet gaming, within 20 hours featuring some significant motions being offered is that with the avail- sports betting, contests, sweepstakes, privacy changes to the terms of the promotion: ability and convenience of social media policies, and website terms and conditions. Tran “[D]ue to the viral volume of participants,” also come numerous opportunities to run focuses her practice on land-based casinos, horse

Sunny Co “[reserved] the right to cap the afoul of the law, including violations of racing, sports betting, sweepstakes and contests. AMANE KANEKO

34 Los Angeles Lawyer October 2017 vidual states in the enforcement of state tening to the radio was sufficient consid- recognized in California. In particular, in gambling laws. eration under contract principles; however, California Gasoline Retailers v. Regal Petro - In the United States, gambling has many Chief Justice Warren adopted the inference leum Corp., the California Supreme Court subcategories, including lotteries, unlawful that when determining whether an act is held that a promotional scheme lacked con- wagering, and bookmaking. Each state can consideration for criminal purposes, consideration because it included a free AMOE adopt its own versions of laws governing sideration under lottery laws should be that allowed participants to play without these various subcategories, and such laws interpreted in the defendant’s favor.8 In purchasing the sponsor’s products.11 The often are inconsistent among states. Of deter mining that the act was not consid- supreme court noted that because any per- particular importance in promotional activ- eration under the statute, Chief Justice son could have had the ability to participate ities is the prohibition against offering lot- Warren stated, “[I]t would be stretching for free, “it would seem that the relative teries. Prohibited lotteries (or games of the statute to the breaking point to give it numbers of tickets distributed with pur- chance) typically involve any activity in an interpretation that would make such chases or without purchases should not be which the following elements are present: programs a crime.”9 determinative of the issue involved which 1) the award of a prize, 2) determined on On the other hand, a promotion requir- is whether the holder, or holders, of the the basis of chance, 3) where consideration ing a purchase or payment to participate tickets paid, or promised to pay a valuable is paid. For instance, California defines a presents a clear example of consideration consideration for the chance of winning a prohibited lottery as “a scheme for the dis- for gambling purposes. A less clear situa- prize.”12 The court further concluded that posal or distribution of property by chance, tion arises when participants are required participants who made a purchase “‘could among persons who have paid or promised to expend some degree of effort that ulti- not be said to have paid a consideration to pay any valuable consideration for the mately benefits the promoter (e.g., com- for the prize tickets since they could have chance of obtaining such property.”3 pleting a questionnaire, referring friends, received them free.’”13 If, however, any one of these three ele- completing a product survey, among oth- In addition to making an AMOE avail- ments is removed, then the activity is gen- ers). While no definitive standard exists, able for all, there are several other factors erally lawful. For example, removing the the rule of thumb is that the more effort that must be satisfied to ensure that the element of chance creates a lawful contest required, the greater the likelihood that it AMOE will be recognized as a permissible of skill in most states. Removing the element will be deemed consideration. method of removing consideration. First, of consideration from a prohibited gambling most state promotional laws require com- Removal of Consideration activity is of particular relevance here since panies to disclose the no-purchase method it generally creates a lawful activity com- Two common models for removing con - of entry in a clear and conspicuous manner. monly known as a sweepstakes. A sweep- sideration exist. Under the first method, the Often, the phrases “no purchase necessary” stakes always contains the element of company does not charge participants to and “purchase will not increase your chances chance and the award of a prize, but the enter the offering. Here, a company’s rev- of winning” are required to be displayed element of consideration is eliminated. enues are derived from the increased sales prominently in the rules as well as all accom- of goods created by the advertising value of panying promotional materials. For instance, What Constitutes Consideration the promotion or collecting fees from third Section 17539.15 of the Business and Pro- With regard to determining whether the parties, such as a promotional sponsor. fessions Code requires the “NO PUR- element of consideration is satisfied, states A second and more common model is CHASE OR PAYMENT NECESSARY” typically follow one of three tests: 1) pecu- referred to as a “flexible entry sweep- language be set out in a separate paragraph niary/economic value jurisdictions, 2) tra- stakes.”10 This type involves some partic- from the rest of the official rules.14 In addi- ditional contract principals jurisdictions, ipants’ paying direct or indirect economic tion, the statement must be in all capital and 3) any consideration jurisdictions.4 value, but the company provides an oppor- letters, in contrasting typeface, and it must However, most states, including California tunity for anyone to enter for free. A com- be no smaller than the largest typeface used have now adopted the pecuniary/economic mon illustration of this model is a promo- in the rest of the official rules.15 If the official value approach to analyzing consideration at a fast food restaurant in which rules are not printed on the marketing mate- tion—some measurable economic value participants receive game pieces in exchange rials, then the “NO PURCHASE OR PAY- flowing from participants to promoters for purchasing hamburgers or soft drinks. MENT NECESSARY” language must be (e.g., transfer of money). Under this pecu- These game pieces, either by themselves or included on the entry form.16 niary/economic value approach, consider- in combination, provide an opportunity Another key is that nonpaying partici- ation “means ‘something of value and not for the purchaser to win valuable prizes pants must have “equal dignity” with pur- merely the formal or technical consideration, in lottery-type games. The key feature to chasers (i.e., equal opportunity to enter, to such as registering one’s name or attending this type of promotion, which distinguishes win, and to win the same prizes). This a certain place, which might be sufficient it from constituting an unlawful lottery, means, for example, a person who enters consideration to support a contract.’”5 however, is the alternative opportunity to by purchase cannot get a disproportionate A key turning point in the distinction participate without having to purchase number of entries compared to a nonpaying of consideration for contract law and gam- anything (e.g., a mail-in request for a free participant. Additionally, nonpaying par- bling purposes occurred in a 1954 U.S. game piece). This alternative method of ticipants should have an equal opportunity Supreme Court case, FCC v. American entering the promotion for free is known to win all prizes offered in the promotion. Broadcasting Company.6 The Supreme as an “AMOE.” Use of an AMOE is gen- That is, the use of separate prize pools for Court assessed whether a promotional erally effective in terms of legally elimi- nonpaying participants would invalidate activity requiring only that listeners accept nating the consideration element, although the AMOE, because they would not have a phone call from the radio station had most entries into the promotion will be the opportunity to win the same prizes. sufficient consideration to constitute an through the purchase of the promoted Likewise, nonpaying participants should illegal lottery.7 Chief Justice Earl Warren product or service. not face greater odds or obstacles to winning acknowledged that the mere act of lis- The flexible entry sweepstakes model is the prizes. For example, California law pro-

36 Los Angeles Lawyer October 2017 vides that “[s]weepstakes entries not accom- made in advertisements. First, California Sponsors also must be careful not to panied by an order for products or services requires the exact nature and approximate represent that the entrant pool is signifi- shall not be subjected to any disability or retail value of the prizes to be disclosed in cantly limited or that a particular individual disadvantage in the winner selection process promotion materials.20 Advertisements also has been specially selected to receive a prize to which an entry accompanied by an order must in clude, immediately adjacent to the unless the statement is true.23 Unless a per- for products or services would not be sub- first identification of the prize, the odds of son is actually entitled to a prize, promo- ject.”17 Any material disparity (actual or winning a prize—e.g., “See Official Rules, tional advertising may not represent that perceived) can invalidate this model. (reference location), for the odds of winning a person is a winner or has already won a a prize,” “Odds of winning a prize depend prize.24 Rep resentations that a person has Official Rules and Advertising upon the number of entries received,” or won a prize without actually disclosing the Even after designing a lawful promotion “Odds of winning 1:100,000.”21 More over, exact nature and approximate retail value that removes the element of consideration, after winners have been determined, spon- of the prize is prohibited.25 Sponsors must the process does not end. Quality official sors are required to obtain the ex press written also avoid describing entries with the word rules governing the administration of the consent of each winner before such names “lucky” to imply that the entrant has a promotion as well as clear, deceptive free may be used in promotional materials.22 higher likelihood of winning a prize.26 advertising are also critical. California requires certain disclosures when a prize is offered as part of a sweepstakes, such as EXPERT WITNESS I CLAIMS CONSULTANT the dates in which the promotion will end and prizes are to be awarded and all rules, — Over 45 Years Experience as a Claims Adjuster — regulations, terms and conditions of the LICENSED IN THREE STATES AND QUALIFIED IN STATE AND FEDERAL COURTS promotion.18 At a minimum, official rules EXPERT IN GOOD FAITH/BAD FAITH, STANDARDS AND PRACTICES should include 1) start and end dates, 2) and standard in the industry. Specialties in property/casualty construction defect, eligibility restrictions, 3) entry methods, 4) fire/water, uninsured/un d eri nsured motorist, warehouse and cargo claims. Failure winner selection details (including selection EXPERIENCE to defend and/or indemnify. Litigation support, case review and evaluation claim and notification dates), 5) the description — consultation, coverage review and valuations. Appraisal, Arbitration and Claims and approximate retail value of the prize(s), INTEGRITY Rep. at MSC & MMC. 6) the odds of winning, 7) where to obtain — Contact Gene Evans at E. L. Evans Associates a winners’ list, 8) the limitations of liability, HONESTY Tel 310.559.4005 • Fax 310.559.4236 • E-mail [email protected] 9) the name and address of the sponsor, 9854 NATIONAL BOULEVARD, SUITE #225, LOS ANGELES CA 90034 and 10) the dispute resolution provisions. Spon sors may consider having entrants check a box affirming that they have read the official rules and agree to be bound by such rules. Requiring such affirmation helps ensure that entrants understand all aspects of the sweepstakes, including required sponsor disclosures, before entering. Obtaining affirmation that entrants have read the rules is insignificant, however, if the rules are not clear and free of deception. Therefore, a company must be careful when drafting official rules to avoid any potential misinterpretation of its intent and anticipate foreseeable issues, for example, prize un - availability, prize damage during shipment, and cheating by participants. It is essential to clearly state all aspects of the promotion as courts will likely not be kind to companies that mislead participants. Claims for breach of contract, fraudulent misrepresentation, and violation of false advertising statutes may arise if prize interpretation is in dispute. California law also deems it an unfair practice for a sweepstakes sponsor to misrepresent in any manner the odds of winning any prize or to misrepresent the official rules of the promotion.19 Ensuring that the promotional advertising complies with legal requirements is equally important. California, for example, has both requirements for what must be in an advertisement as well as prohibitions against certain representations being

Los Angeles Lawyer October 2017 37 Words that promote a sense of urgency, users. Thus, detail, clarity, and accuracy media platform’s restrictions and draft the such as “Act Now!” and “Open Immedi - are crucial in drafting rules. This is evi- promotion’s rules in compliance with them. ately,” are prohibited, unless there is actu- denced by attorney general enforcement This is important because a promotion ally limited time in which a person must actions and substantial fines that are levied could be terminated prematurely for non- act to claim, or be entitled to a prize, and against companies found to be promoting compliance with the platform’s restrictions, the promotional materials clearly and con- fraudulent schemes and engaging in other which may lead to a violation of applicable spicuously disclose the date by which such forms of false or deceptive advertising on state law because the promotion did not action is required.27 California also pro- the Internet (i.e., official rules that do not adhere to its operational framework as set hibits sponsors from using promotional accurately reflect the promotion). forth in its official rules. materials that create a false impression In particular, a misdemeanor charge will Finally, while California does not, sev- that such documents are authorized, issued, be imposed on any person found to have eral states do require registration and bond- or approved by any court, official, or violated any of California’s sweepstakes ing of a chance-based promotion if the agency of a state or the United States, or provisions,31 and the California Attorney prizes awarded exceed a set amount. To by a lawyer, law firm, or insurance or bro- General or a district attorney may prosecute register with a state, among other items, kerage company.28 Likewise, promotional such persons. Private parties, district at - a company must submit the promotion’s materials cannot create a false impression torneys, city attorneys, county counsel, the official rules as well as pay registration as to their source, authorization, or approval California Attorney General and other fees. In addition to registration require- or be in the form of simulated checks or agencies of the state may enforce the pro- ments, separate bonds and trusts based on currency unless “SPECIMEN-NONNEGO- visions governing the operation of sweep- the total approximate retail value of all TIABLE” is clearly and conspicuously stakes through civil court actions. The prizes are required for Florida and New printed on the simulated currency.29 Lastly, nature of the action will determine the York. Sufficient time for registration and sponsors may not impose a fee as a condition available remedies, which may include civil bonding should therefore be allotted when to an entrant’s entitlement to a money prize penalties of up to $2,500 for each violation, planning a promotion. Failure to do so or impose a fee as a condition of acquiring injunction, and restitution.32 Additional may result in postponement of the pro- prize or sweepstakes inform ation.30 civil penalties of $2,500 for each violation motion to allow for the necessary regis- With a deeper understanding of the may be charged as an unlawful business trations or in the blocking of these states intricacies of offering a promotion, com- practice if a promotion is found to be in in order to proceed in the timeframe ini- panies should understand that official rules violation of the sweepstakes provisions.33 tially proposed. are like any other binding contract, except With the power of social media comes Social Media Platforms that instead of contracting with another the lure of producing the next viral pro- sophisticated company, the company is When using social media, a company also motion to set the company apart from potentially contracting with thousands of must be aware of the applicable social its competitors. Companies must be cog-

38 Los Angeles Lawyer October 2017 nizant, however, of the legal constraints in the promotional space. In particular, companies are exposing themselves to a specialized and regulated industry with substantial penalties for violations.34 Re - taining counsel familiar with this area of the law to help develop and vet promotions is not only a prudent tactic to circumvent promotional mishaps (e.g., customer confusion), but, in more severe circumstances, to stave off criminal pen - alties resulting from improperly imple- mented promotions. n

1 The customers would be able to receive a $65 swimsuit for free and only needed to pay shipping and handling. 2 “GAMETIME! Promo Rules As Follows: 1. No Ex changes/Returns, All Promo Orders Final. 2. Code Valid for 24 hr. only, No Exceptions. 3. Due to the viral volume of participants we reserve the right to cap the promotion if deemed necessary. 4. Participants must pay Shipping & Handling 5. Due to the over- whelming volume of orders we will work as fast as we can to process + ship (approx. 3-6 weeks) but there may be delays. 6. Promo Code will only work for Part icipants who reposted and tagged us. Limited to 1 Suit per participant. 7. Shout out to @twazerapp for sponsoring this promotion. 8. Promo Code: Sunny Xoxo, Sunny Team.” Shortly after the promotion ended, Sunny Co’s Instagram was temporarily shut down. 3 PENAL CODE §319. 4 See generally Anthony N. Cabot, Glenn J. Light & Karl F. Rutledge, Economic Value, Equal Dignity and the Future of Sweepstakes, 1 U. NEV. LAS VEGAS GAMING L.J. 1 (2010), available at http://scholars .law.unlv.edu/glj/vol1/iss1/7 [hereinafter Cabot]. 5 Mobil Oil Corp. v. Att’y Gen., 280 N.E. 2d 406, 411 (Mass. 1972) (quoting Commonwealth v. Heffner, 24 N.E. 2d 508, 508-09 (Mass. 1939)). 6 FCC v. American Broad. Co., 347 U.S. 284, 286 n.2, 290-91 (1954). 7 Id. 8 Id. at 296. 9 Id. at 294. 10 Cabot, supra note 4, at 15. 11 California Gasoline Retailers v. Regal Petroleum Corp., 330 P. 2d 778, 782, 789 (Cal. 1958). 12 Id. at 786. 13 Id. (quoting People v. Carpenter, 297 P. 2d 498, 500-01 (Cal. Ct. App. 1956)). 14 BUS. & PROF. CODE §17539.15(b). 15 Id. 16 Id. 17 Id. §17539.15(c). 18 Id. §17539.1(a)(5)(D), (F). 19 Id. §17539.1(a)(3)-(4). 20 Id. §17539.1(a)(6). 21 Id. §17539.5(e). 22 Id. §17539.1(a)(13). 23 Id. §17539.1(a)(8). 24 Id. §17539.15(a). 25 Id. §17539.1(a)(9). 26 Id. §17539.1(a)(11). 27 Id. §17539.15(h). 28 Id. §17539.15(i)(1). 29 Id. §§17539.15(i)(2), 17539.1(14). 30 Id. §17539.15(l)(1). 31 Id. §17534. 32 Id. §§17535, 17536. 33 Id. §§17200, 17206. 34 Id. §17534.

Los Angeles Lawyer October 2017 39 closing argument BY HANNAH BELKNAP AND TERESA GUTIERREZ

The “Win-Win” Virtues of Engaging in Pro Bono Services

ATTORNEYS HAVE A UNIQUE SET OF SKILLS and knowledge that directly link up with LACBA’s legal services projects where you can be used to expand access to justice through pro bono work. can get involved in various issues such as domestic violence All lawyers can do pro bono, and your help is needed. The term restraining orders, veterans legal services, immigration legal assis- pro bono publico means “for the public good” and generally tance, and legal assistance to people living with HIV/AIDS, refers to providing free legal services directly to persons of limited depending on your interests. The LACBA website now also pro- means or to nonprofit organizations in matters designed to vides information about other pro bono opportunities, including address the needs of persons of limited means. Legal work with a list of Los Angeles legal services programs and a link to a one of the legal services projects of the Los Angeles County Bar searchable online directory of statewide legal services organizations, Association or that has been screened and referred by a legal answers to frequently asked questions, as well as other resources. services organization qualifies as pro bono. LACBA also updated its Pro Bono Policy and Commentary, People really need your help. A huge un- met need for pro bono legal services in our community continues to exist. As lawyers, Pro bono work connects you to people with issues you can help we are extremely fortunate to be able to practice law, to posses a license to practice, and to have skills that many lack. It is well address. It makes you feel like a lawyer. accepted that every lawyer has a professional responsibility to provide legal services to those unable to pay. Each of us should aim to provide a minimum of 50 hours of pro bono services each year. encouraging every lawyer to participate. There are many other reasons to do pro bono work, including Thinking that you lack the substantive expertise or requisite the benefits to be obtained from service. Pro bono opportunities time to volunteer should not act as a roadblock. There is something help build skills. With in-person hearings and trials few and far out there for everyone—opportunities vary greatly by time com- between in typical commercial work, lawyers can find opportunities mitment and subject area. In fact, many opportunities involve dis- to interact with clients, judges, and the court system through pro crete time commitments and require very little expertise, and bono work. In turn, clients in need benefit, as do the pro bono training and guidance by experienced attorneys often is available. lawyers themselves and the firms and companies that employ Your financial support also is critical. Please consider making them. Studies have repeatedly shown that attorneys get better a contribution directly to LACBA Counsel for Justice, which results than litigants who are forced to represent themselves. supports the LACBA legal services projects, and to other legal Networking opportunities through pro bono efforts also increase service organizations. Increased funding for legal services is nec- interpersonal relationships, confidence, and substantive expertise essary to close the justice gap. and can boost referral potentials and business opportunities. Whether you volunteer for two or 86 hours this year, you There is something about pro bono work that creates a sense of will have made a difference in someone’s life, and also your own. instant credibility with others. LACBA makes it easy for you to learn more, to sign up, and to Also, it feels good to do pro bono work. It is often the most join the effort to increase access to justice in Los Angeles County. personally rewarding work a lawyer does. Pro bono work connects Give a little time, effort, and support, and gain a sense of com- you to people with issues you can help address. It makes you feel munity involvement and personal satisfaction, while earning the like a lawyer. Your experience, training, and unique knowledge gratitude of someone who truly needs your help. Find something are put to use in a tangible way. Yes, our jobs and other activities that works for you and make a difference. can allow us to make a difference in the world, but doing pro Check out the updated pro bono resources under the “GIVE bono work for people who truly need it is a concrete, attainable BACK” tab at www.lacba.org. n achievement specific to lawyers, and one that breeds a deep personal satisfaction. Even if it doesn’t always feel like it, we are fortunate Hannah Belknap and Teresa Gutierrez are members of the LACBA Access to and privileged to be lawyers. Our community is home to many Justice Committee. Belknap is an associate at the law firm of Palmer, Lombardi with critical legal issues and less means. Our justice system depends & Donohue LLP, focusing her practice on business and financial services and on our involvement. We have the knowledge and talents to ensure real estate, securities, and employment litigation. Gutierrez is the founder that every person has an opportunity to achieve justice. of Teresa Gutierrez Law, a boutique estate firm in Los Angeles, where she The LACBA Access to Justice Committee recently added also handles guardianship matters in probate court for abused, abandoned, resources to the LACBA website, under the “GIVE BACK” tab, and neglected youth and provides pro bono services for the clients of various to support increased involvement in pro bono service. You can Los Angeles-based nonprofits.

40 Los Angeles Lawyer October 2017