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Paul Zimmerman
pzimmerman@mrllp.com
310.299.5500

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Some Things Just Can’t Be Settled Over a Beer

The craft brewing industry is focused on its beer, not the courtroom. Indeed, the culture within the space is one of collaboration and compromise, which is why very few beer makers sue over trademark issues, In many ways, this is what makes the craft brewing space – and its product—so special. But despite the spirit of cooperation within their world, there is a time for craft brewers to throw down and litigate—or, at the very least, to issue cease and desist letters in the wake of trademark violations. The question is, when is a more aggressive stance necessary? (Read More)

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A “Reason to Believe” the FTC Is Quite Unhappy

In a complete turnabout, a Northern District Court in Georgia recently reversed itself and dealt a significant blow to the Federal Trade Commission, limiting its capacity to state claims against defendants for consumer fraud. In FTC vs. Hornbeam Special Situations, LLC, the court held that the Commission could no longer seek to punish bad actors based solely on past behavior. Instead, currently existing or threatened violations of the FTC Act must be alleged for the FTC to bring a successful action against any defendant accused of bilking consumers. (Read more)

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Your Company Needs a Social Media Policy

The use of social media in the corporate setting carries serious potential risk. The most extreme example of this, of late, is Tesla CEO Elon Musk, who was sued by the Securities and Exchange Commission after tweeting that he was considering taking Tesla private and that he had “funding secured” in order to do so. Market chaos and the SEC litigation ensued, and since then Musk has been forced to step down as chairman of the electric car company and pay a $20 million fine to settle with the SEC.

While not grabbing as many headlines as Musk, employees of all rank and profile are prone to commit social media blunders, and they too can pay the consequences. Take, for example, the Dunkin’ Donuts employees who posted a video they created showing one of them humiliating a homeless man at a Syracuse, New York location; the workers at a Little Caesars franchise in Riverdale, Georgia who uploaded onto Instagram a picture of a customer along with a tasteless message about her; or the Texas Children’s Hospital nurse in Houston who went on an anti-vaccine rant online relating to a young patient’s bout with measles. In all these cases, the employees were fired, but that certainly did not shield their employers from a slew of negative press. (Read More)

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Pfizer Settles With New York Attorney General Over "Pay No More Than" Claims

Pharmaceutical giant Pfizer probably wishes it had to “pay no more than” $15 to settle allegations brought by the New York Attorney General, but actual penalties recently levied against the company by the AG are quite a bit steeper.

The settlement in question stems from Pfizer deceptively marketing a copayment coupon program. The problematic copayment coupons stated in large, clear text that eligible consumers would “PAY NO MORE THAN” $15 or $20 out-of-pocket for certain drugs. This was untrue. In fact, consumers frequently paid significantly more than the amounts advertised on the coupons because prearranged limits on total savings were not prominently disclosed. Indeed, Pfizer allowed the coupons to be distributed to consumers without clearly and conspicuously setting forth the promotions’ material terms and conditions. As a consequence, at least one person who believed a prescription would cost “no more than” $15 ended up paying nearly $145 at a pharmacy cash register. (Read More)

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A Formula for Trouble: New York AG Settles With Abbott Labs Over Misleading Surveys

Abbott Labs, the maker of Similac infant formula, found itself in some hot water after sending misleading marketing surveys to new parents. The surveys, ostensibly sent by the “National Institute of Infant Nutrition,” sought information about the recipients’ demographics and their infants’ feeding habits. In terms of the latter, the survey asked, whether or not babies had been breast-fed and, if formula-fed, the brand of formula parents used. The problem is that when the surveys were sent, there was no known entity named the “National Institute of Infant Nutrition (NIIN),” and Abbott used the survey information for its own marketing purposes. (Read More)

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Misclassification Class Actions Take a Back Seat

The corporate folks at Uber Technologies Inc. have cause to be uber-happy given the outcome of a recent appeal before the Ninth Circuit – a decision that sends a clear message to employers throughout the West.

The peer-to-peer ridesharing company had been facing a class action lawsuit filed on behalf of drivers claiming to be Uber employees, as opposed to independent contractors as classified when hired and as reflected in agreements they signed with the company. The stakes in the case were high and potentially quite costly for Uber: among other things, reclassification would potentially require reimbursement for gasoline and vehicle maintenance and trigger minimum wage and overtime laws. (Read More)

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New California Law Seeks to Close the Corporate Gender Gap, But Is It Constitutional?

Think of California and you’re likely to conjure up images of palm trees, movie stars, surfers, the Golden Gate Bridge and maybe even In N Out Burger. But what the Golden State is perhaps best known for is its progressivism. Time and again, causes that take root in California are often precedential, which explains the adage: as California goes, so goes the nation.

Enter Senate Bill 826. Recently signed by Governor Jerry Brown, the law requires publicly held, California corporations to have in place at least one female board member. These companies have until December 31, 2019 to comply, and then in 2021, additional measures kick in – when boards with five or more seats will be required to include at least two female directors. The failure of corporations to abide by the new rule comes with a notable price tag – fines from $100,000 to $300,000 can be imposed. (Read More)

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The Consumer Review Fairness Act: Compliance and the Quest for Transparent Customer Assessment

In the age of Yelp, Facebook Amazon and Trip Advisor, most people make purchasing, dining, travel and entertainment decisions based on reviews posted by fellow consumers. These reviews are critical for both would-be customers and businesses, and it is crucial that they honestly reflect the quality of a company’s products, services and customer service. (Read More)

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Employee Accommodations: Now a Mandatory Topic of Conversation in NYC

The hurdles for employers in New York City continue to line up. The latest legal mandate: compliance with local accommodations law.

Beginning October 15, 2018, NYC employers with four or more employees will be required to engage in and document a good faith written or oral dialogue concerning (1) their employees’ accommodations needs, (2) potential accommodations that may address those needs (including proposed alternatives), and (3) any difficulties potential accommodations may pose for the employer. The types of accommodations contemplated under the so-called “cooperative dialogue law” are those relating to an employee’s religion; disability; pregnancy, childbirth or other related medical conditions; or the needs of a victim of domestic violence, sex offenses and stalking. (Read More)

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Under the Microscope: Substance Abuse Patient Referrals 

Governor Brown just signed Senate Bill 1228 into law, implementing Health & Safety Code §§11831.6 and 11831.7. The move directly impacts marketing practices within the world of substance abuse treatment. (Read More)