Naughty or Nice: Which Would Bubbie Choose?

by Erica Intzekostas on March 20, 2014

My Bubbie always told me I should find a “nice Jewish boy” to settle down with. I dutifully did as my Bubbie advised. But what about all the nice Jewish single women who are still looking for their nice Jewish soulmate? Where are they to find a future husband to make a Jewish home with? Luckily for them there’s the Nice Jewish Guys calendar, which can be ordered from http://nicejewishguys.net/. There they can find photos and bios of “nice Jewish guys” that they can take “home to Mom”. And Bubbie of course, let’s not forget Bubbie.

But, oh no! What if instead these nice Jewish women get confused and inadvertently stumble upon a different calendar, one that features naughty Jewish boys?! (Funny, my Bubbie never warned me about the naughty variety of Jewish boys.) Well, apparently, there really is such a thing as naughty Jewish boys, and they can soon be found lurking on the pages of the Naughty Jewish Boys calendar, which is still in production but can be pre-ordered from http://www.naughtyjewishboys.com/.

In an effort to save these young naive Jewish women and their hopeful adoring Bubbies from inadvertently purchasing a calendar filled with naughty Jewish boys (and making sure these nice Jewish women stay on the right path to Jewish marital bliss), the owners of the Nice Jewish Guys calendar and their lawyers sent a letter to the makers of the Naughty Jewish Boys calendar asking them to stop promoting these Naughty Jewish Boys calendars so as not to “cause confusion in the marketplace.” But alas, the owners of the Naughty Jewish Boys calendars are refusing to back down, claiming that “aside from the existence of Jewish males in the calendar our aspirations are different.” I think my Bubbie would agree that their aspirations are indeed different. I also think my Bubbie would not have been at all confused  … and most likely would have chosen the Nice Jewish Guys calendar for her daughters and granddaughters.

From a legal standpoint, the “what would Bubbie do?” question is an important one, because at the heart of a trademark infringement claim is the question of whether the average target consumer is likely to be confused. So if this case actually goes to court, a judge will have to decide whether Bubbies and young single Jewish women are likely to be confused between a calendar featuring nice Jewish males and one featuring naughty Jewish males. In the meantime, all the Bubbies can continue to do everything in their power, including purchasing Nice Jewish Boys calendars (and forsaking the Naughty ones), to make sure their daughters and granddaughters find nice Jewish boys. Now excuse me while I put in my pre-order …

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Permission to Call

by Erica Intzekostas on October 1, 2013

Major changes to United States telemarketing laws are just around the corner. The changes, issued and finalized by the FCC more than a year ago, are to the Telephone Consumer Protection Act, one of the main pieces of legislation that governs how telemarketers can use telephones to market products and services to consumers. These new rules, aimed at reducing the number of unwanted telemarketing calls, especially to cell phones, are expected to have a significant impact on the telemarketing industry. Under current law, telemarketers can call cell phone lines as long as they have the consumer’s prior consent or if they have an “established business relationship” with the consumer. The new rules, which come into effect later this month on October 16th, eliminate the “established business relationship” exception and significantly narrow the ways in which a telemarketer can obtain a consumer’s consent.

Under the new rules, before making either (a) an autodialed or prerecorded telemarketing call to a cell phone or (b) a prerecorded telemarketing call to a residential land line or a cell phone, the telemarketer must obtain the “unambiguous written consent” of the consumer and must provide the consumer with “clear and conspicuous disclosures” of the consequences of the consent (e.g. that the consumer will receive telemarketing calls). To qualify as unambiguous, the consent must specify the consumer’s phone number and the name of the business that would call that number. The language of the consent must also make it clear that no purchase of any product or service is conditioned upon the consent. (In other words, the consumer does not have to agree to receive telemarketing calls in order to make a purchase.)

The resulting problem for telemarketers is twofold. One, the elimination of the “established business relationship” is a big deal because that exception allowed businesses to call their existing and recent customers to market additional products. Two, many businesses obtain phone numbers of potential new customers by purchasing legally obtained phone numbers from other companies. Those companies were able to obtain the required consent by simply having consumers agree to receive telemarketing calls in general. Now, however, the law requires that the consumer must agree to receive telemarketing calls from or on behalf of a specific company. In other words, the consent, in order to be valid under the new rules, must specifically inform the consumer of the name of the company that will be calling.

Electronic and digital forms of signature are acceptable as long as they comply with applicable federal and state law, such as the E-SIGN Act. However, the business bears the burden of proving that a clear and conspicuous disclosure was provided, that the consumer unambiguously consented to receive marketing calls at the number called, and that it was clear that the consent was not a condition of purchase. Telemarketing companies need to make sure they comply with these new rules or face steep penalties. Even an inadvertent violation of these rules can result in fines of $500 per violation. (The fine is $1,500/call for intentional violations.) These numbers may sound small for a major telemarketing company, but they can quickly add up — not to mention the time and money expended to address complaints.

Only time will tell whether the new law actually reduces the volume of unwanted telemarketing calls, or if it merely creates more hoops for telemarketers to jump through. Keep in mind, however, that the new rules do not affect debt collection calls because those are not considered telemarketing calls. So if you owe money, don’t expect those debt collection calls to stop!

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Hey, Good Looking

by Raelynn Zappulla on July 22, 2013

Pop quiz: Which of the following is not an acceptable reason for termination?

(a) Your repeated, unapproved missed days from work

(b) Your alcoholism is affecting your work performance

(c) You’re way too good looking

(d) You stole money

The answer is not c, but all of the above. On July 12th, the Iowa Supreme Court determined for a second time that James Knight, 53, was not guilty of gender discrimination after firing Melissa Nelson, 32, for being too irresistible.

Nelson, a married mother of two, worked for Knight at his dental office for ten years. In the final months of her employment, Knight claimed Nelson’s clothes were distractingly tight and that his arousal was a threat to his marriage. Nelson, who reportedly saw Knight as a father figure, claimed she wore standard scrubs like the other dental assistants in the office.

Knight’s wife, also an employee at the dental office, discovered text messages on her husband’s phone between he and Nelson. They discussed things such as how her infrequent sex life would be like “having a Lamborghini in the garage and never driving it” and how often she experienced orgasms (she didn’t respond), but mentioned to her in person that “if she saw his pants bulging, she would know her clothing was too revealing.’

Knight’s wife demanded Nelson be terminated and after consulting with their pastor, Knight obliged, offering Nelson one month’s severance pay.

According to The Daily Mail UK, Nelson’s attorney, Paige Fiedler is concerned about how this ruling will affect women in the workplace.

“These judges sent a message to Iowa women that they don’t think men can be held responsible for their sexual desires and that Iowa women are the ones who have to monitor and control their bosses’ sexual desires,’ Fielder said. ’If they get out of hand, then the women can be legally fired for it.”

In the same article, Knight’s attorney, Stuart Cochrane, is quoted as defending the courts ruling stating “while there was really no fault on the part of Mrs. Nelson, it was just as clear the decision to terminate her was not related to the fact that she was a woman. The motives behind Dr. Knight terminating Mrs. Nelson were quite clear: He did so to preserve his marriage.”

Since the termination was based on feelings and not gender, the all-male court decided 7-0 that this was not gender discrimination even if Nelson claims this wouldn’t have happened if she were a man. Nelson has since been replaced by a woman, adding to his all-female staff.

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How important are the results that come up when someone does an internet search on you? If you ask Lee David Clayworth, he’ll likely say “very.”

We’ve all heard of the crazy ex that spreads rumors or unflattering photos after a bad breakup on Facebook, Twitter or the like. You might have even had one. Lee Ching Yan takes the crazy ex label to a completely new level.

For several months, Lee David Clayworth and Lee Ching Yan dated while he was on a teaching assignment in Malaysia in 2010. Like many relationships, theirs went south. After the breakup, Yan broke into Clayworth’s home and stole his personal computer and other items. She hacked into his email and Skype accounts and began sending emails claiming he has had sexual relationships with his students. Memes with Clayworth’s semi-pantsless image with his name and the words “genital herpes”, “loves young boys and old man”[sic], and “would you hire this guy as a teacher?” spread across Google image search results. When searching his name, liarscheatersrus.com is the first result. This has gone on for two and a half years.

Clayworth had sued Yan in a Malaysian court where she was found guilty of defamation, however due to “differing international interpretations of cyber-law”, Malaysian officials cannot demand American search engine companies to remove the posts, according to Huffington Post Canada. Yan has reportedly fled the country, possibly to Australia, where she continues her cyber assault. Clayworth returned to Canada in 2012 where he struggles to gain employment, possibly due to his negative internet reputation.

According to an article on Mashable.com, Kaplan Test Prep surveyed college admissions officers and found that in 2012, 35% of officers that searched the internet found something negative about an applicant that affected their chances of acceptance. That number has increased from 12% the year prior.

A survey completed by CareerBuilder.com states that two in five companies use social networking sites to gain information about their potential employee. A search on “Lee David Clayworth Facebook” brings up a BlackList Planet page accusing Clayworth of cheating on his girlfriend. An unsavory online reputation has become such an issue that companies such as Reputation911 and Massive PR specialize in restoring brand and reputation management.

So what comes up when you google me? My LinkedIn page, about a million pictures of me with my dogs, links to some blogs I authored, my slow Broad Street Run results and an article from 1995 when I won a figure skating competition. Yes, I may be a bit on the tame side but had a potential employer did a search on me and found pictures of me drinking from a beer bong in front of city hall, my employment options may be a little scarce. For the record, that picture does not exist.

If you’ve ever suffered through a bad breakup, it may be worthwhile to do a vanity Google… just in case. Your future may depend on it.

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Don’t sue the messenger

by Chris Erb on April 26, 2013

My children spend much of their time tattling on, arguing with, and otherwise maligning their siblings, presumably in the hope of achieving some parentally-conferred advantage. In the legal world those statements, if false, would generally be referred to as defamation, although Wikipedia lists a host of synonyms or near synonyms including “calumny, vilification, traducement, slander … and libel.” I personally like “calumny,” since it sounds vaguely Dickensian, but either way those statements would be considered actionable under the common law.
In the past, the distribution of those types of statements was necessarily limited to people within reach of the speakers voice, with wider distribution necessitating a whole lot of stamps and envelopes or the cooperation of the New York Times. More recently, the internet has made it possible to broadcast those statements well beyond the confines of a home, or a town, or even a state at a very low cost, emboldening a host of would-be defamers. Equally importantly, the speakers are often anonymous, and may be located in a distant state or country beyond the reach of their victim’s local courts or law enforcement.
As a result, frustrated victims (or those who perceive themselves victims) often look to a bigger but more easily reached target – the internet host or service provider. Of course, in most instances the host has no idea of the nature of particular customer’s content until told, and even then the host is hard pressed to determine the relative truth of, say, a blog post or a website. Mindful of this, and in response to a number of early internet cases, Congress inserted what became section 230 into the otherwise ill-fated Communications Decency Act (“CDA”) which confers immunity on an ISP for the speech of its customers for many types of speech.
Section 230′s protections are broad, but there are some important limitations. Immunity does not extend to intellectual property rights, which are governed by existing IP law as well as newer laws like the DMCA. Immunity can also be lost when the ISP is or becomes the speaker or the provider of the content, rather than the infrastructure on which the content is disseminated.
Otherwise, an ISP or even a website which allows third parties to provide content has a fairly solid defense against claims which are based on the content of a third party’s statement. While the protection isn’t without limits, those seeking the removal of content should generally focus their efforts on the speaker, rather than the ISP.

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Summary of 3 Key Changes to HIPAA and HITECH

by Erica Intzekostas on April 22, 2013

As we reported last month, the Department of Health and Human Services released its final rule earlier this year modifying and clarifying certain requirements under HIPAA and HITECH. The final rule became effective on March 26, 2013. Covered entities and business associates have until September 23, 2013 to come into compliance with the new rules.

Here is a quick summary of three of the key changes:

1. Business Associates Liability: The new regulations expand the definition of the term “business associate” so that more entities now will qualify. Under the new regulations, not only do business associates have to sign a Business Associate Agreement, but they will be subject to certain rules and liabilities even outside a Business Associate Agreement. The Business Associate Agreement must comply with the new regulations. For any existing Business Associate Agreements that were executed prior to January 25, 2013, those entities have until September 23, 2014 (an extra year) to execute an updated version.

2. Covered Entities Liability: The new regulations expand the liability of covered entities by making covered entities liable for the actions of certain of their business associates. Whether a covered entity is liable for the actions of a business associate depends on the degree of control the covered entity has over the business associate.

3. Breach Notification Requirements: The new regulations tighten the breach notification requirements and place the burden on the covered entity or business associate to demonstrate (through a risk assessment) that there is a low probability that personal health information has been compromised as a result of the breach.

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No more crying Wulff

by Chris Erb on April 15, 2013

Google Wulff

If you’ve ever vanity-Googled and found stuff you don’t like on the internet, you’re certainly not alone. Unfortunately trying to prevent certain unsavory keywords from becoming associated with your name can be extremely difficult, even for those who are politically or otherwise well-connected.

For over two years, Bettina Wulff, the wife of a former German President, has tried to prevent the German words for “red light” and “escort” from being associated with her name during Google searches. As you can see from the above, at least one term, “rotlicht” (or red light) still appears as of this writing.

Perhaps tired of tilting at windmills, Ms. Wulff voluntarily cancelled an upcoming hearing in the case according to German new sources (in German). Whether this means that she’s given up or not remains to be seen, but for now it remains extremely difficult to challenge Google’s keyword associations, no matter where and to whom they happen.

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CISPA’s back, but not better than ever

by Chris Erb on April 14, 2013

The much maligned CISPA (Cyber Intelligence Sharing and Protection Act) is back, a statute designed to better protect the country from cybersecurity threats, but which has provoked the ire of privacy advocates and others concerned about the broad access granted to law enforcement under the law. The focus of the law is to allow private companies to “voluntarily” share information with law enforcement and to limit liability for doing so. The bill recently made it through the House Intelligence Committee, paving the road for consideration by the House of Representatives.

CISPA would allow ISPs to voluntarily provide e-mail and other customer communications to law enforcement with fewer safeguards. Under current law, law enforcement cannot access to e-mails and other communications without a search warrant, and ISPs are only permitted to disclose communications voluntarily under very limited circumstances.

The problem with any law of this nature is the fundamental imbalance between the interests of the owner of the information and the party voluntarily providing access to that information. Let’s face it, Google or Verizon will never be as interested in the privacy of your e-mails as you will be, and while there have been some much-publicized cases where ISPs and social media giants protect customer data in the face of law enforcement requests, it’s often easier and almost always cheaper for ISPs to simply provide the requested information than to do battle with law enforcement over whether the information is or is not really critical for a cybersecurity investigation. Moreover, lacking the entire picture, it is almost impossible for an ISP to determine whether a particular cybersecurity request is reasonable or not.

This time around, some in the internet industry are supporting CISPA, albeit with some reservations. That appears to be a case of “better the devil you know, than the devil you don’t,” but it is a little disturbing for privacy advocates like EFF who see one of the few bright-line protections for internet users about to go the way of the dodo bird.

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H-1B visa cap met in the first few days

by Chris Erb on April 8, 2013

For the past few years employers have grown used to the idea that there were enough H-1B visa to last quite a while, if not the entire year. This year, in spite of anemic job growth, the H-1B cap for the fiscal year 2014 was met within the first few days of eligibility, as over 120,000 petitions were filed for only 85,000 available visas.
The USCIS has decided to once again decide which petitions will be accepted by lottery, meaning even those whose petitions arrived on April first may in fact find themselves with the short end of the stick, a nasty little April Fool’s joke indeed.

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HIPAA and HITECH Final Rule

by Erica Intzekostas on March 27, 2013

The Department of Health and Human Services released its final rule earlier this year modifying and clarifying certain requirements under HIPAA and HITECH. The final rule became effective yesterday. Covered entities and business associates have until September 23, 2013 to come into compliance with the new rules. Over the next few weeks we will be reporting on particular areas of the final rule that may be important to some of our clients, including those in the healthcare industry, as well as individuals and companies that do business with those in the healthcare industry or otherwise have access to personal health care information. So stay tuned!

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