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The New York Times’ Economix blog cast light on an interesting piece of legislation that is in the works, and which apparently has Obama’s approval. The bill that Obama said he was “supportive of” while giving an interview on the Tom Joyner Morning Show, seems to be the “Fair Employment Opportunity Act of 2011”,which makes it illegal for employers and recruiters to discriminate against the unemployed in making hiring decisions. It has been well documented that recently a trend has cropped up where job ads and hiring practices exclude the unemployed from applying (for example, the many listings on popular sites such as CareerBuilder and Monster.com, which say that employers “strongly prefer” people that are currently employed or only very recently laid-off). This is creating a Catch-22, where the only people who can get jobs are the ones who don’t really need them. Right now, the practice is not illegal because unemployment is not a protected status like race or religion, however, the Fair Employment Opportunity Act seeks to explicitly bar these types of practices, and allow the unemployed who have been discriminated against to sue for uncapped actual damages of any wages, salary, other compensation or benefits denied or lost, in addition to liquidated damages, compensatory and punitive damages, and other equitable relief. An Op-Ed in the National Law Journal argues in favor of the bill, saying that discrimination against the unemployed has huge social costs and is bad for the economy, public safety and has the potential of creating a permanently unemployable class. Critics of the bill, however, say such legislation is unworkablebecause it would simply make employers get rid of the discriminatory language in their ads, but it would not force them to hire people who are unemployed, and if the discrimination is not overt, it would be nearly impossible to prove because there are many legitimate reasons an unemployed candidate may be unattractive to an employer.

Tobacco companies are crying victim in a new lawsuit they’ve launched against the Federal government. 4 of the 5 largest tobacco companies are suing over the new graphic warning labels they are being asked to carry on their products, saying the warning labels are restricting their free speech rights. The companies point out that no other maker of legal substances is required by the government to carry, on its own packaging and advertising, messages to discourage the prospective customer from purchasing the product. The warning labels have become too big, the companies argue, they no longer just convey facts to help people decide whether to smoke, but actually take up more space on the package than the cigarette’s brand name. Furthermore, the tobacco company’s lawsuit alleges that the stark images on the new labels that were approved by the FDA to appear on cigarette packs were manipulated to make them scarier.

With a pile of new evidence to consider, the Supreme Court is set to revisit the issue of eyewitness identification after its 1977 decision on the matter. The scientific understanding of memory has been revolutionized in the last 30 years and studies now suggest that about a third of eyewitness identifications are incorrect and these mistaken identifications lead to wrongful convictions (many convictions that were later overturned with DNA evidence involved eyewitnesses who were wrong). The problem with eyewitness identification is not only that it is unreliable at best, but also that it is usually enough to base a case on, with juries “over-believing” the testimony of an eyewitness. With the result that many cases hang on this powerful but unreliable evidence.

Many legal experts are glad the Supreme Court is taking another look at the issue, unfortunately the case that the Supreme Court is reviewing, Perry v. New Hampshire, is unlikely to lead to a definitive ruling on the whole issue, leaving the state of the law unclear (the justices will likely only decide on the use of eyewitness identifications in certain situations). Furthermore, the justices are not deciding whether limiting eyewitness testimony is a good idea, but whether the Constitution allows it, so they may be reluctant to make constitutionally-based regulations for using eyewitness evidence.

What many experts want is for eyewitness testimony to be treated more like “trace evidence”, a fragment of proof collected at a crime scene, whose integrity and reliability is assessed from investigation to trial. Experts have suggested several ways to make the evidence collected from eyewitness accounts more reliable and temper the impact of that evidence in a case. First, investigators could administer line-ups double-blind (so that neither the witness nor the person supervising knows the “right” answer), and even telling the witness that the suspect may not be present in the line-up or photo array. Then, at trial, judges would need to instruct juries about the limitations of eyewitness testimonies and the nature of memory.

NBA Commissioner Daniel Stern, discussing the on-going negotiation between the NBA owners and players’ association, recently pointed out that, “The NFL, which is usually profitable as opposed to the NBA, which isn’t, got [a] double-digit [revenue] reduction from their players.”

Stern is using the recently concluded NFL labor negotiation as a precedent to support the NBA owners’ position. Precedent – what has happened in the past in similar negotiations – is a powerful independent standard for determining what is “fair and reasonable.”

The players can – and I expect will – challenge the validity of this precedent by suggesting the NBA circumstances are sufficiently different from the NFL to warrant a valid comparison.

How can you put precedent power to work? Research all applicable precedents and evaluate whether and how to use each in your negotiation.

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Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts’ proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at             480-951-3222       orLatz@ExpertNegotiator.com.

The big story out of New York today is the district attorney’s office formally filing a motion to dismiss the sexual assault case against Dominique Strauss-Kahn. The motion stated that the district attorney’s office no longer wanted to go forward with the case because Strauss-Kahn’s accuser had demonstrated a “pattern of untruthfulness” which damaged her credibility in the eyes of the district attorneys, and, the filing continues, it is the policy of the DA’s office not to ask a jury to believe without a shadow of a doubt that which the DA’s office itself is not sure of. What seems to have damaged the case the most for the prosecution was the lack of DNA evidence confirming force and the fact that the accuser had admitted to previously inventing a plausible story of sexual assault in order to gain asylum in the US. Despite these weaknesses in the case, many people, including women’s groups and black leaders, have been pressuring the DA’s office to take the case to trial. It is important to note that the DA’s decision to drop the case does not mean that they believe Strauss-Kahn innocent, but that they do not have enough evidence to prove him guilty. And New York Times blogger, Clyde Haberman, points out that although the DA’s office and the whole justice system has been criticized in this case, the fact that prosecutors initially had full faith in the word of a low-status woman against that of a powerful man shows that the justice system is working the way we hope it would.

When the district attorney’s office informed the accuser of their decision to drop the case, her lawyer, Mr. Thomson, accused the District Attorney of denying his client the right to get justice. He has also filed a lawsuit against Strauss-Kahn seeking unspecified damages, so this case is not yet over.

What is your opinion on the way the DSK trial ended? Do you think justice was served in this case? Did prosecutors drop the case for legitimate reasons or should they have perused the case further?

Congratulations to Benjamin Brafman, one of our faculty members, on his success in this case, which seemed so daunting in the beginning but was skillfully handled by the defense.

Really interesting story out of Suffolk County, NY, has County Officials seeking a “gang injunction” that would bar gang members from a 2 mile “safety zone”.  This model has been used in California to protect public areas from gang violence, but a similar effort in Queens in 2000 was struck down by the State Supreme Court. The Justice in that case said the gang members and prostitutes whom the police were trying to bar from congregating in Queens Plaza were not dangerous enough to warrant having their civil liberties restricted. The Suffolk County chapter of the New York Civil Liberties Union is confident that the effort in Wyandanch will also be denied by the court. However, when a similar effort was struck down in California it was because the gang members that were named in the injunction were not given the opportunity to deny that they were dangerous gang members, thereby violating their due-process rights. In Wyandanch, however, authorities would notify the 37 men on the registry and if those men wanted to be removed from the list they would have to contact the court and prove they were no longer affiliated with the gang. Suffolk County executive, Steve Levy, hopes that the injunction will be granted as the injunction targets men who are self-confessed members of the gangs and have been previously convicted of serious crimes. While drugs and gang violence is a growing problem in the area, some residents are still concerned that civil rights will be violated by this injunction and that the effort is really just another form of profiling.

What are your thoughts on “gang injunctions”? Are they a violation of civil rights? Are they alright as long as they only bang specific, dangerous criminals who are known gang members? How dangerous do gang members have to be before being put on the registry? Comment below!

According to a report in the N Y Times, the strike by Verizon workers is turning ugly, with management accusing the strikers of sabotage, and the unions alleging that several strikers had been hit by the managers’ cars. With negotiations stalling, both sides are attacking each other and accusing the other of failing to bargain in good faith

Verizon officials contend that there was a noticeable uptick in the number of “incidents” at Verizon since its workers went on strike last week. The officials estimated there were about 143 acts of sabotage committed, and that phone lines were cut in Washington DC, Maryland, New York and New Jersey and affected 2 police departments and a nursing home. The spokeswoman for the Communication Workers of America, the union to which the strikers belong, denied the allegations of sabotage and suggested that this was just an attempt by Verizon management to turn public opinion against the strikers and avoid negotiating with the union over cutting benefits.

Meanwhile, Verizon has obtained court injunctions that make it easier for workers to enter and leave Verizon facilities safely. However, the strikers insist that they are the ones who are in danger after several strikers were allegedly hit by cars approaching Verizon facilities.

There are a lot of accusations flying back and forth, but the sides are still no closer to reaching a deal on the concessions Verizon is asking of the 45,000 striking workers. 

This week, a New York Judge ruled against high-end shoe maker Christian Louboutin in the company’s efforts to stop competitor Yves Saint Laurent, from selling shoes with red soles. Although Louboutin was granted a trademark for the red soles in 2008, the judge said Louboutin would have trouble defending the “overly broad” trademark in court. The judge ruled that granting the injunction Louboutin was seeking would be tantamount to giving them a monopoly over the color red and would “impermissibly hinder competition”, unfairly restricting options available to other designers. Harley Irwin Lewin, the lawyer representing Louboutin, believes he could win at the appeals level if the company decides to take the case further, since the lacquered red sole has achieved trademark status with the public and because Louboutin only plans to defend certain hues of red on certain types of shoes. A lawyer for Yves Saint Laurent, however, countered by saying that if Louboutin won this case, it would invite endless lawsuits and force judges to become arbiters of fashion design.

Was Louboutin’s trademark “overly broad”? How do you expect the shoemaker to do in appeals court?

For more on Intellectual Property Issues in the fashion industry, check out Representing the Fashion Client on Lawline.com

An article published in the New York Times yesterday gives an interesting analysis of how the differing legal histories of the US and EU countries effects their reaction to online privacy protection. Spain has recently ordered Google to stop indexing information on 90 of its citizens who have filed formal complaints with the country’s Data Protection Agency.  The Spanish case is being watched closely in Europe, but regardless of the verdict in that case, the EU’s Justice Commissioner is expected to introduce new “right to be forgotten” regulations, which would give individuals more control over the data that’s posted about them online.  No such regulations are being put forward in the US and the Spanish citizens who filed a complaint would not have received a hearing in a United States court, since the US has a completely different view of privacy rights. The concept of privacy and dignity are enshrined in European law, whereas in the United States, the courts have repeatedly found that the right to publish a truth about someone supersedes that individual’s privacy rights. German privacy law even allows the suppression of someone’s criminal background after they have paid their debt to society, allowing even criminals their right to privacy. In the United States, however, once something is made public online, the individual can do nothing to get rid of it if it’s true.

Another big privacy issue that shows the difference between the US and Europe has to do with Google’s “Street View” feature. Google had to face down several lawsuits in different European countries over taking street-by-street pictures, and in Germany had to allow individuals and businesses to opt out. In the US however, anyone has the right to take pictures of anything that’s in a public space. Europeans are generally uncomfortable with breaches of privacy on the net, including the way their personal information is used by search engines for commercial purposes; ¾ of Europeans wanted the ability to delete personal data from the internet at any time.

For more on defamation and privacy rights on the internet, check out this highly-rated course from Lawline faculty member, Herald Price Fahringer : “The First Amendment: Defamation on the Internet“