“Sometimes appellate opinions are issued on a seemingly narrow subject matter that can apply to many other factual contexts.  In one such recent example, a Florida appellate court concluded that a security services provider could not be held responsible for allegedly failing to protect a person who was criminally attacked,” reports Matthew J. Meyer in Ansa | Assuncao’s News & Articles. “The reason for the appellate court’s decision is what is interesting, and could be applied well beyond the factual circumstances involved in the specific case:  the security provider’s contract with Miami-Dade County established the hours of service, and those hours of service ended at 7:00 pm each day, therefore the security provider had no legal duty to provide security to a person who was attacked at 8:00 pm. ”

“In reaching its decision, the appellate court discussed the concepts of ‘zone of risk’ and the corresponding legal duty for a security provider to ‘protect persons lawfully on defined premises.’  Importantly, however, the appellate court explained:  ‘Nonetheless, the extent of the undertaking as defined under the terms of the contract should define the scope of the duty.’ Applying this doctrine, the appellate court explained its conclusion that the responsibility to enact reasonable security measures was borne solely by the County.”

Read the article.

“Dentons says it will appeal a $32.3 million malpractice verdict based on its disqualification in a patent case because of work done by its Canadian branch.” reports Debra Cassens Weiss in ABA Journal’s Law Firms.

“Jurors in Cuyahoga County, Ohio, had found Dentons liable Feb. 13 in a suit by its former client, laser-inscribing company RevoLaze … The verdict is thought to be the largest legal malpractice judgment in Ohio’s history, according to a press release from RevoLaze’s law firm.”

“The suit had alleged that the booting of Dentons from the case forced RevoLaze to quickly find new lawyers and impacted its leverage in settlement negotiations.”

“The case highlights legal issues related to Dentons’ Swiss verein structure in which more than 10,000 lawyers are associated with the law firm.”

Read the article.

“Now more than a half a year into his house arrest, environmental attorney Steven Donziger received a passionate recommendation to receive his law license back on Monday from the officer presiding over his bar proceedings in New York. ” reports Adam Klasfeld in Courthouse News Service.

“My recommendation is that his interim suspension should be ended, and that he should be allowed to resume the practice of law,” bar referee John Horan declared.”

“For his role in obtaining a $9.8 billion judgment against Chevron, Donziger has faced the threat of financial ruin from enormous legal fees, criminal prosecution and the suspension of his law license. He has spent more than six months wearing an ankle bracelet in his apartment in New York’s Upper East Side, pursued for the better part of a decade by one of the world’s most powerful oil companies after zealous litigation that one judge labeled a fraud.”

Read the article.

“What makes an expert witness persuasive to a jury? Is it their background and training? The work that they did on the case? Their communication skills in teaching the jury?” asks Dr. Ken Broda-Bahm in the Persuasive Litigator.

“The research suggests that expert influence depends on a variety of factors, and a scale even exists to measure these factors: the Expert Persuasion Expectancy (ExPEx) framework. That framework includes many of the variables that experts and the attorneys who sponsor them would expect: Foundation, Field, Specialty, Ability, Opinion, Support, Consistency, and Trustworthiness. Even as the items are potentially unsurprising, it is still helpful to keep the whole list in mind.”

“Recent research  shows that these factors matter, and also suggests that there may be a ‘Big 3’ in this list.”

Read the article.

“Agreeing to arbitrate a dispute, whether in a contract or by agreement, is a serious decision for any business.  There are pros and cons to binding arbitration versus trial in a court that go beyond a series of blog posts, but the fact is that when a dispute is arbitrated, finality is the rule. It is very difficult to appeal an arbitration award. In many instances, representing a party in an arbitration requires more due diligence and work than a trial. Great “arbitration” lawyering is therefore essential but many times does not happen.” warns David K. Taylor in BuildSmart Bradley’s Arbitration.

“Arbitration is a matter of contract. Federal and state law allow for the enforcement of arbitration clauses. Courts now favor arbitration. There are plenty of articles out there on drafting arbitration clauses, but far too often drafters fail to consider the basics.”

Read the article to learn the basics.

“An Orange County lawyer who represents clients in criminal defense cases faces federal charges of her own after being accused of conspiring to sell firearms without serial numbers, also known as ‘ghost guns.'” reports Brandi Hitt in Eyewitness News ABC 7.

“Federal agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives say 41-year-old attorney Melinda Romines was allegedly trying to sell the guns by acting as a broker between black market dealers and customers.”

“The weapons are referred to as ‘ghost guns’ because it is difficult to trace them.”

Read the article.

On Monday, a grand jury declined to indict Angela Elleman, a Kentucky defense lawyer, “accused of digging up shell casings linked to a murder case and keeping them in a safe for more than six years,” reports Debra Cassens Weiss in ABA Journal’s Criminal Justice.

“Elleman is a lawyer with the Louisville public defender’s office… A special prosecutor had presented the case to the grand jury.”

“Elleman represented Anthony Hogan, who told prosecutors in 2018 about the shell casings when they spoke with him about testifying against a co-defendant. Hogan and the co-defendant were charged in the April 2012 killing of 15-year-old Gregory Holt.”

Read the article.

“A lawyer who led the child molestation investigation and prosecution of former Penn State assistant football coach Jerry Sandusky lost his law license for a year Wednesday over his handling of a grand jury witness in the case, the Pennsylvania Supreme Court ruled,” reports Mark Scolforo in ABC 6 News.

“The justices issued a 5-1 decision to suspend Frank Fina’s license for a year and a day, agreeing with the Office of Disciplinary Counsel that Fina’s actions were improper in obtaining grand jury testimony about three top university officials by then-Penn State General Counsel Cynthia Baldwin.”

“Baldwin, who also was accused of violating professional rules for lawyers in her representation of the officials, was given a public reprimand by the high court Wednesday. Messages were left for her lawyer and at her home.”

Read the article.

“A Kansas law firm that claimed that a competitor was inflating client recoveries in its advertising won’t be able to pursue its lawsuit,” reports Debra Cassens Weiss in ABA Journal’s Law Firms.

“U.S. District Judge Eric Melgren of Wichita, Kansas, ruled against the Brave Law Firm in Feb. 12 decision dismissing his case.”

“The Brave Law Firm, a personal injury firm, had alleged that Brad Pistotnik Law and the Pistotnik-affiliated Truck Accident Lawyers Group were engaging in false and deceptive advertising by listing high-dollar recoveries.”

“Various amounts are listed on screen, including $9 million … The $9 million amount was also listed online and in print ads.”

Read the article.

“A Cleveland-area lawyer had to show his contrition with a $500 fine and a written mea culpa as a result of a judge’s order last week,” report Debra Cassens Weiss in ABA Journal’s Ethics section.

“Cleveland.com describes the contempt sanction for lawyer Anthony Baker of Lorain, Ohio, as a “Bart Simpson-esque dose of punishment,” imposed for leaving the defense table as a protest during jury instructions.”

“On Thursday, Judge Nancy Fuerst ordered Baker to write 25 times, in legible handwriting, that he will not engage in conduct that violates ethics rules.”

Read the article.

“The Ninth U.S. Circuit Court of Appeals has reversed a summary judgment in favor of the City of Los Angeles and two of its police officers in an action by a Century City entertainment lawyer who was handcuffed behind her back when arrested on a traffic warrant despite her protest that she had a severely injured shoulder that was “frozen” and that such positioning of her arms would result in extreme pain,” reports Metropolitan News-Enterprise.

“Among the allegations by plaintiff Marina Borawick are that, because the officers viewed her as belligerent, she was vindictively kept in handcuffs for about an hour, notwithstanding that she was in agony. Borawick charged that they acted despite a fear she expressed, after she was placed in a police car, that the experience—in light of her vascular disorder which had resulted in three bypass surgeries—could prove life-threatening to her.”

“A video recording of the encounter shows her exclaiming” she was afraid she was “going to have a heart attach.”: ‘I’m afraid I’m going to have a heart attack.”

Read the article.

“Michael Avenatti, the failed presidential candidate and lawyer who represented adult-film star Stormy Daniels in her suit against President Trump, was found guilty by a federal jury in New York on Friday of all three counts he faced over an attempt to extort Nike. The disgraced attorney could now spend a maximum of 20 years in prison, and his epic downfall hasn’t ended either, since additional trials await for other alleged crimes.” reports Chas Danner in the New York Intelligencer.

“Last March, federal prosecutors alleged that while Avenatti was representing a youth basketball coach, he and an associate threatened to publicly accuse Nike of illegally paying amateur basketball players if the company didn’t hand over millions of dollars. Avenatti was arrested in March after the FBI recorded him threatening Nike representatives.”

Read the article.

“A tip to an FBI hotline launched an eight-month investigation by the state police organized crime unit that ended this week with a Uniontown lawyer being accused of offering to launder drug money for clients.” reports Paul Peirce in TRIBLIVE’s Regional News.

“Authorities on Thursday arrested Tancredi Calabrese, 32, who is charged with dealing in the proceeds of unlawful activities, criminal attempt to deal in the proceeds of unlawful activities, unsworn falsification to authorities and tampering with public records. He is free on $50,000 unsecured bond. A preliminary hearing is scheduled Feb. 26.”

“The investigation began in June after the FBI received a tip about Calabrese’s alleged activity, Trooper Craig Yauch reported in court documents.”

Read the article.

“Florida’s Second District Court of Appeal recently issued a decision that serves as a reminder not to take for granted a proposition that most practicing attorneys regularly encounter: a motion for summary judgment must be supported by competent evidence, and an affidavit that does little more than mimic the motion for summary judgment will not suffice.” write Dean A. Morande and Rachel A. Oostendorp in Carlton Fields Insights.

“In Rodriguez v. Avatar Property & Casualty Insurance Co., a plaintiff sued her insurer, alleging that it had breached her homeowners insurance contract by denying coverage for water damage. The trial court granted the insurer’s two separate motions for summary judgment” which the Second District reversed “concluding that the 37-page affidavit lacked sufficient information to demonstrate that the affiant possessed the competency or personal knowledge to testify on those matters, which ranged from contract interpretation to trade specialties of plumbing and contracting. ”

Further, “The affidavit failed to identify her title or corporate duties, did not state that it was made on personal knowledge, and did not set forth her relevant skill set or experience.”

Read the article for the three “musts”.

“A California lawyer practicing in Orange County was arrested today on a federal grand jury indictment charging her with conspiring to sell firearms without a license and distributing methamphetamine.” reports LawFuel.

“Melinda Romines, 41, of Anaheim, was taken into federal custody this morning. She is expected to make her initial court appearance this afternoon in United States District Court in Los Angeles.”

“Romines has been charged with one count of conspiracy to engage in the business of dealing in firearms without a license, one count of possession of an unregistered firearm, and two counts of distributing methamphetamine.”

Read the article.

“Bayer AG has asked a California appeals court to overturn an $86 million verdict that found it was responsible for a couple’s cancer caused by its glyphosate-based weed killer Roundup.” reports Tina Bellon in Reuter’s Environment News.

“Bayer in a statement on Monday said U.S. regulators had consistently found glyphosate to be non-carcinogenic and that the Pilliods’ lawyer during trial repeatedly violated court orders in an attempt to inflame jurors.”

“The company denies the allegations made by more than 42,700 plaintiffs in the United States, saying decades of studies have shown Roundup and glyphosate are safe for human use.”

Read the article.

“Most lawyers have a general understanding of the “no-contact rule”  — with a few exceptions, you can’t communicate directly on the subject of the representation with someone you know is represented by counsel.  But where does in-house counsel fit in?  Is in-house counsel “fair game” for ex parte contact by opposing counsel?” asks Karen Rubin in Thompson Hine’s Communication.

“Last month, the Virginia Supreme Court approved Legal Ethics Opinion 1890, and answered “Yes,” in an opinion that also covered some other issues of concern to in-house counsel.”

Read the article.

“Legal technologies promise to flourish in the coming decade, and although it is not possible to predict all the innovations that are likely to become mainstream, the use of smart contracts appears to be on the rise. A typical smart contract uses computers and code to automate performance of some or all of the parties’ obligations. However, the legal terms of the contract are likely to remain in written form in a contract that people can read. If a dispute arises, the parties may prefer arbitration as an alternative to court, but arbitration doesn’t happen on its own – it typically requires a properly drafted arbitration clause.”

Steven K. Davidson, Michael J. Baratz, Jared R. Butcher and Molly Bruder Fox provide some tips in Steptoe’s News/Publications to keep in mind when considering how to draft these clauses.

Read the article.

“Let’s assume the mediator sticks his head into your room with a grin at 8pm after an exhaustive day when your client is still upset he made the 8^th counteroffer and the Mediator says: “Great news! Counter-offer accepted! We have a deal!” Wonderful, right? Even though your client was pushed way past what he came ready to do that day, you have a deal. So what mistakes are made when it comes to confirming the long sought, hard fought deal?” asks David K. Taylor in Buildsmart Mediation.

“This post is a continuation of the 10 most horrible, terrible, no good, “bang your head against the door” mistakes that I have seen lawyers make before, during and after mediations in which I was the mediator. As stated in previous posts, it takes more than throwing together a mediation statement at the last second and showing up at the mediation. Doing it right requires the same kind of due diligence and work that goes into preparing for a key deposition or even trial. Great “mediation” lawyering is essential and is the best way to get to an acceptable deal.”

Read the Top 10 mistakes made in mediations.

Maker of hard seltzer Brizzy charges market confusion with planned launch of Vizzy

Future Proof Brands LLC, the small entrepreneurial beverage company that introduced its Brizzy® premium hard seltzer in 2019, has filed litigation in an Austin federal court, charging that Molson Coors (NYSE: TAP) is infringing on Brizzy’s federally registered trademark and creating market confusion through the industry giant’s planned launch of a competing product, Vizzy, later this year.

In the lawsuit, filed February 6, Future Proof claims that Molson Coors, through its MillerCoors subsidiary, is moving forward with the Vizzy introduction despite the company being fully aware of Brizzy, its trademark and the ongoing distribution of Brizzy products.

“The goodwill associated with the Brizzy mark is a valuable asset to Future Proof, and Future Proof has expended great effort and considerable resources in promoting its products using the BRIZZY mark,” the lawsuit states.

Future Proof launched the four-flavor Brizzy line in 2019 and the brand is currently sold at more than 1,000 retail locations in Texas, Kansas, Virginia, California and North Carolina. Future Proof has sold more than 10,000 cases since September, and projects Brizzy sales to exceed $2.5 million in 2020, with plans to continue expanding distribution.

“The positive market reaction to Brizzy has exceeded our expectations,” says Future Proof CEO Justin Fenchel. “Unfortunately, several wholesalers and retailers are already expressing concerns about likely consumer confusion with Vizzy. The names are nearly identical, they sound alike, the product is similar, the packaging is similar, and we are often distributed by the same wholesalers.”

Future Proof also makes the BeatBox line of alcoholic party punches, which gained national recognition in 2014 when the company gained a $1 million investment from Mark Cuban on ABC’s Shark Tank program. Last year the company was named to Inc. Magazine’s annual list of the 5,000 fastest-growing private companies in the nation. BeatBox’s distribution footprint now covers 22 states, and more than 10,000 retailers.

“We believe that Brizzy is poised to generate similar if not greater success,” said Fenchel. “But a multinational brewing conglomerate doesn’t have the right to bigfoot a smaller competitor and blatantly violate our trademark and jeopardize everything we’ve built.”

During the last decade, the hard seltzer market has grown to account for nearly half of all U.S. mixed drinks sales.

Future Proof is represented in the case by Christopher J. Schwegmann and Kent Krabill of Lynn Pinker Cox & Hurst LLP in Dallas.

The case is Future Proof Brands LLC v. Molson Coors Beverage Company f/k/a Molson Coors Brewing Company and MillerCoors LLC., NO. 1:20-cv-144 in the United States District Court for the Western District of Texas.