November 20, 2017

Conducting Salary Discussions in New York City after November 1, 2017

By Marc Jacobson, Esq.

Don't ask for an applicant's salary history, whether for you or your client, when interviewing that applicant for employment in New York City.

You were asked to represent a film production to take place in NYC. As part of that engagement, you were asked to negotiate agreements for the director, cast members, and for the department heads, including makeup, sound, transportation, costumes, and others.

Calls start coming in and you're ready to get to work. An actor's agent confirms that her client wants to play the female lead. In turn, you say the role requires eight consecutive weeks of shooting preceded by one week of rehearsal. You want to minimize costs for the production, and ask: "What's her quote?", meaning, what was her fee per week on her last film?

Or, you're working on any other NYC production--a TV show, play, or music video-- and you need to negotiate the agreement for the Costume or Set Designer. You ask each agent for a quote.

Under a new law, now in effect in NYC, each such question can subject the production to a fine of $125,000.

Section 8-107 of the NYC Administrative Code was recently amended to add a new subdivision 25. That subdivision prohibits employers from inquiring about or relying on a prospective employee's salary history prior to setting a new salary. When enacting the law, the council said: "When employers rely on salary histories to determine compensation, they perpetuate the gender wage gap. Adopting measures like this bill can reduce the likelihood that women will be prejudiced by prior salary levels and help break the cycle of gender pay inequity."

It is now unlawful for an "employer, employment agency, or employee or agent thereof:
1. To inquire about the salary history of an applicant for employment; or
2. To rely on the salary history of an applicant in determining the salary, benefits or other compensation for such applicant during the hiring process, including the negotiation of a contract."

There is a definition of "inquire" in the code as well:
" 'to inquire' means to communicate any question or statement to an applicant, an applicant's current or prior employer, or a current or former employee or agent of the applicant's current or prior employer, in writing or otherwise, for the purpose of obtaining an applicant's salary history, or to conduct a search of publicly available records or reports for the purpose of obtaining an applicant's salary history, but does not include informing the applicant in writing or otherwise about the position's proposed or anticipated salary or salary range."

The term "salary history" is also defined: "For purposes of this subdivision, 'salary history' includes the applicant's current or prior wage, benefits or other compensation. 'Salary history' does not include any objective measure of the applicant's productivity such as revenue, sales, or other production reports."

The employer, or its representatives, "may, without inquiring about salary history, engage in discussion with the applicant about their expectations with respect to salary benefits and other compensation..."

Going further, and making these interviews/negotiations even more awkward, "where an applicant voluntarily and without prompting discloses salary history to the [employer or its representatives] the employer [or its representatives] may consider salary history in determining salary benefits and other compensation for such applicant, and may verify such applicant's salary history."

If you're in the midst of such a discussion, you cannot "prompt" the applicant to tell you his or her salary history. Further, if you learn it from another source, you also cannot "rely" on it in determining the salary of the applicant.

However, if the applicant voluntarily reveals that information to you without prompting, you can rely on the information, and make whatever decision you want.

Without a tape recording of every conversation between the employer or the employer's representatives, and the applicant or the applicant's representatives, it seems like whatever happens in these calls will be difficult to prove.

Under §8-126 of the NYC Administrative Code, if the Human Rights Commission, which has the authority to enforce the new subdivision, finds that a person "has engaged in an unlawful discriminatory practice, it may, to vindicate the public interest, impose a civil penalty" of not more than $125,000. This penalty is in addition to the complainant's right to bring a private action under the code. Criminal misdemeanor penalties are available for "any person who shall willfully resist, prevent, impede or interfere with the commission or any of its members or representatives in the performance of any duty" under the code.

Whether acting for yourself or your clients, it is now a violation of the NYC Administrative Code to inquire about salary history, or to rely on salary history, to determine the salary of any employee.

Link to the NYC Charter:

The code, as enacted, with summary of the law:

Marc Jacobson, Esq. is the Founding Chairman of the NYS Bar Association Section on Entertainment Arts & Sports Law. He speaks regularly at bar association and other events about issues related to his practice. He is licensed to practice law in New York, California, and Florida. He can be reached at or +1-212-245-8955.

November 19, 2017

Week in Review

By Michael Smith

Below, for your browsing convenience, the categories are divided into Entertainment, Art, Sports, and Media. First, of general interest:

Ninth Circuit Partially Reinstates Trump Travel Ban

The Ninth Circuit Court ruled that the Trump administration's travel policy blocking entry to travelers from Chad, Iran, Libya, Somalia, Syria, and Yemen can be implemented, except as to people who have a "bona fide relationship" with close family or an organization in the United States.

Australians Vote to Legalize Same-Sex Marriage

61.6% of Australians responding to a government survey voted in favor of legalizing same-sex marriage. The votes were non-binding, but sent a message to legislators regarding public support for legalization.

Signs of Russian Interference in Brexit, British Infrastructure

Researchers have identified more than 150,000 Russian Twitter accounts that tweeted messages meant to inflame xenophobia and otherwise encourage Brits to vote for Brexit. On Tuesday, Britain's National Cyber Security Centre accused Russian hackers of attacking the British energy grid and telecommunications and media industries.

Foreign Intelligence Surveillance Court Upholds Standing to Challenge Secrecy of Its Opinions

In a first of its kind and closely decided en banc decision, the United States Foreign Intelligence Surveillance Court vacated its initial decision that the ACLU and Yale Law School's Media Freedom and Information Access Clinic suffered no injury-in-fact and thus lacked standing to bring First Amendment claims seeking access to redacted portions of the court's opinions. The six-judge majority concluded the initial opinion had improperly considered the merits of the claim, which were not relevant to the standing inquiry. The dissent argued that the First Amendment right of public access does not apply to judicial proceedings that have never been public.


Old Vic Reports 20 Accusations of Spacey

London's Old Vic theater released the reports of an investigation into Kevin Spacey's tenure as the theater's artistic director, revealing that 20 people have alleged that Spacey engaged in inappropriate behavior. The theater was not able to independently verify the allegations, but apologized for "not creating an environment or culture where people felt able to speak freely."

Fox's "Empire" Doesn't Infringe On Record Label's Trademark

The Ninth Circuit Court affirmed the Central District's ruling that Fox Television's use of "Empire," the name of its hit music-industry drama is protected by the First Amendment and does not infringe upon the rights of real-life music company Empire Distribution, Inc.


Alec Baldwin Settles with Art Dealer

Actor Alec Baldwin settled his dispute with art dealer Mary Boone over a painting that Baldwin purchased in 2010. Baldwin claims that the painting Boone delivered was not the one for which he paid $190,00. Reportedly, Boone will pay Baldwin a seven-figure sum and two paintings.


FIFA Trial Moves Forward

On Monday, the trial of three former presidents of the soccer associations of Peru, Paraguay, and Brazil opened in the Eastern District of New York. The men are charged with soliciting and accepting bribes in exchange for television and marketing contracts. They are three of dozens of defendants, many of whom have plead guilty or avoided extradition to the United States.

Accusations of Misconduct in FIFA Trial

Prosecutors asked Judge Pamela Chen to revoke bail for defendant Mauel Burga, former president of the Peruvian soccer federation, for intimidating witness Alejandro Burzaco. Prosecutors say that Burga made throat-cutting gestures during Burzaco's testimony. Burzaco's lawyer, Bruce Udolf, says Burzaco is a "serial liar," and Burga was simply scratching a rash on his neck. Judge Chen will hold a hearing next week on the allegations of witness tampering, and said Burga should be examined by a dermatologist.

Apparent Suicide Linked to FIFA Trial

On Tuesday, Jorge Delhon, an attorney who worked for Argentina's government-run soccer television program "Futbol Para Todos," was hit by a train and killed. His death came hours after a witness in the FIFA trial testified that Delhon had received bribes.

Marketing Executive Says That Fox Sports Paid Bribes

On Tuesday, a former executive of sports marketing company Torneos y Competencias testified in the FIFA trial that media companies, including Fox sports, paid bribes to obtain television rights for soccer matches.

Paraguayan Judge Authorizes Extradition of Former Soccer Official

On Thursday, a Paraguayan judge authorized the extradition to the United States of Nicolas Leoz, the 89-year-old former head of the South American Football confederation. Leoz is accused of bribery.

Jones v. Goodell Continues

Jerry Jones, owner of the Dallas Cowboys, has been vocal in his opposition to the extension of Commissioner Roger Goodell's contract, which is being negotiated by the National Football League's (NFL's) compensation committee. Jones hired David Boies and threatened to sue the league and its owners, and other owners believe that his actions are motivated by resentment over Goodell's decision to suspend Cowboys running back Ezekiel Elliott. Jones says he is trying to make the contract talks more transparent, and is pushing to have all team owners vote on the contract extension. In a letter sent to Boies last week, the members of the committee accused Jones of "conduct detrimental to the league's best interests"--language evocative of the basis for sanctions (including possible suspension) against a team owner.

Elliott Drops Suspension Appeal

Dallas Cowboys running back Ezekiel Elliott will not continue to pursue an appeal of his six-game suspension. Elliott was suspended after an NFL investigation concluded he had engaged in acts of domestic violence. Elliott denies the allegations and says his decision is not an admission of wrongdoing.

Players Say NFL is Standing in the Way of Settlement Payments

Retired players and their families are accusing the NFL of delaying or obstructing payments due to them pursuant to a 2015 settlement of a lawsuit over the NFL's dealing with head trauma. Of 1,400 claims filed so far, only 140 have been approved, and only about half of the approved settlements have been paid out. Players say the hoops they have to jump through to get paid are unreasonable, and that the NFL is unreasonably denying claims and intentionally moving slowly.

WADA Committee Recommends Russia Not be Re-Certified

The World Anti-Doping Agency's (WADA's) compliance review committee recommended that Russia not be deemed compliant with anti-doping regulations. If WADA adopts the recommendation, Russia will remain banned from major sports events, such as the New York City Marathon and the Paralympics.

Trump Intervenes on Behalf of UCLA Basketball Players

When President Trump learned that three UCLA students visiting China as part of a sponsored sports program had been arrested for shoplifting, he raised it during his meeting with China's president, Xi Jinping. Soon thereafter, charges were reduced and the players were released to their hotel.

Virginia Marathoners Disqualified for Russian Connections

The winner of the men's division of the Richmond, VA marathon and the first- and third-place finishers in the women's half marathon, were all disqualified because they share an agent: Larisa Mikhaylova, a Russian who has been accused of providing runners with performance-enhancing drugs. Mikhaylova registered the athletes using an alias.


Federal Communications Commission to Loosen Media Ownership Regulations

Federal Communications Commission (FCC) chairman Ajit Pai said on Wednesday that the FCC intends to roll back regulations that ban cross-ownership of a newspaper and broadcast TV station in the same market. Pai said the decades-old rules, which were instituted prior to the ascendancy of cable news and the Internet, no longer make sense.

Missouri Investigating Google Business Practices

Missouri's attorney general disclosed that his office subpoenaed Google for information concerning the company's collection and use of private information, the use of other content providers' information on its sites, and possible bias in search engine results.

YouTube Purges Awlaki Videos

After years of criticism and pressure, YouTube has taken much more aggressive steps to eliminate videos of Anwar al-Awlaki, a jihadist known as the "Osama bin Laden of the Internet". Awlaki was killed six years ago by a U.S. drone strike, but until recently YouTube hosted tens of thousands of videos of Awlaki's recordings. Using a combination of video fingerprinting technology and human review, YouTube has drastically reduced the number of videos of Awlaki available on the site, and those that remain tend to be reportage or commentary.

Journalist Charged in Inauguration Protests Goes to Trial

Alexei Wood, one of two reporters set to stand trial for his involvement in Inauguration Day protests in front of the Capitol, appeared in the Superior Court of the District of Columbia on Wednesday. Nine journalists were charged, but charges against seven were dropped. Wood and the other remaining journalist, Aaron Cantú, are charged with rioting and destruction of property.

Advertisers Send Mixed Messages on Hannity

After Sean Hannity made comments on his television show calling one of Roy Moore's alleged encounters "consensual," many called on advertisers to pull their ads from his show. Some advertisers, including Keurig, Reddi Whip,, Nature's Bounty, and Volvo tweeted messages indicating that they had pulled their ads. However, earlier this week many of those advertisers were clarifying or deleting those tweets.

Russia May Require Foreign Media to Register

On Wednesday, Russia's Parliament approved legislation that could require foreign media organizations operating in Russia to identify themselves as "foreign agents". President Putin, who must sign the legislation into law, expressed concerns the rule may go too far. The move is seen as a response to the United States Justice Department's decision to require Russian state-run TV to identify itself as a "foreign agent" under the Foreign Agents Registration Act of 1938, which was intended to combat Nazi propaganda.

November 14, 2017

Week in Review

By Tiombe Tallie Carter, Esq.

Democrats Score Two Big Victories in Trump Rebuke

The most recent election sent a clear message: Americans rebuke President Trump and Republicans. Virginia was decidedly clear, with Lt. Gov. Ralph Northam's 9-point victory over Ed Gillespie, the Republican nominee. Although Mr. Gillespie introduced wedge issues, such as immigration to Confederate iconography into the race, Virginians rejected that strategy. New Jersey had similar results, with Philip Murphy winning the governorship with a large majority. The Democrats were big winners in local elections across the nation.

Being Famously Wealthy, as Quietly as Possible

Files from one of the world's largest offshore law firms show how the ultra-wealthy hide, keep, and flex their wealth. Documents from the Bermuda offshore law firm Appleby were obtained by German newspaper Suddeutsche Zeitung, who shared them with an international journalist consortium. Last year, practices of another firm, Mossack Fonseca, were revealed in the infamous Panama Papers. Offshore firms provide high-profile clients secrecy as well as tax minimization opportunities. Some firms like Appleby "are more scrupulous than others by shunning overtly corrupt criminal clients." Appleby maintains offices in locations that offer "low or zero tax rates." Its spokesperson stated that it has done nothing wrong and is a firm whose job is to advise its clients on legitimate and lawful ways to conduct their businesses.

Prosecutors Drop Criminal Case Against Activist Arrested After Laughing at Sessions

Laughing out loud can be a crime. Just ask Desiree Fairooz. Fairooz, a political activist who attended Attorney General Jeff Sessions' confirmation hearing, laughed during the hearing when it was stated that Sessions' record of "treating all Americans equally under the law is clear and well documented." Apparently, this statement struck Fairooz as comical, so much so that she burst out laughing on two occasions and disrupted the confirmation. The 61-year-old activist was arrested on two misdemeanor charges of unlawful conduct. In May, she was convicted by a jury whose conviction was later overturned in July by Chief Judge Robert Morin of the DC Superior Court. The case was set for a retrial this month. Without explanation, federal prosecutors have dropped the case, much to the relief of Fairooz, who saw the legal ordeal as no laughing matter.

Where to Draw the Line on Free Speech? Wedding Cake Case Vexes Lawyers

Masterpiece Cake Shop v. Colorado Civil Rights Commission (No. 16-111), also known as the wedding cake case, is a challenge even for the nation's foremost free speech lawyers. Where to draw the line on protected expression is at issue. Attorneys who once supported freedom of artistic expression find themselves on opposing sides when it comes to cakes. Attorney Floyd Abrams takes the position that "when an artist sells a message, he must take all comers." His amicus brief is also supported by distinguished law school deans Kathleen M. Sullivan and Geoffrey Stone, and filed by former acting Solicitor General Walter Dellinger. Attorneys on the other side--Michael W. McConnell, Richard W. Garnett and Randy E. Barnett--filed a brief supporting the Colorado baker Jack Phillips. Their position is that the "state's effort to compel Phillips to use his artistic talent in a manner that's violative of his sincere convictions offends the vital constitutional commitment to freedom of expression." Eugene Volokh, another leading First Amendment scholar, took a different position in support of the gay couple, David Mullins and Charlie Craig, stating "cakes may be tasty and pretty, but creating them is not an expression protected by the First Amendment." He's opposed by attorneys once on the same side. Professor Dale Carpenter and the Cato Institute in their brief support the baker, stating, "the fact that the [baker's] medium are icing and chocolate rather than ink or paint does nothing to diminish the artistic content of his work." The case will be argued before the U.S. Supreme Court next month.

Uneven Breaks Among the Wealthy

How you earn your millions will be impacted by the new tax revisions. The Republican tax bill would be bad for professional athletes. High-earning owners of certain businesses known as pass-through entities would receive large tax breaks, while millionaires who earn money solely from their high-salaried employment would take a tax hit. Once drafted, the tax bill would "likely cut the taxes of Robert Kraft, the owner of the New England Patriots, while likely raising the taxes on Tom Brady, the team's quarterback." Members of the House Ways and Means Committee began debating the bill last week. President Trump is pushing to have the tax bill passed by the end of this year.

In Frustration, President Flays Justice System

President Trump crossed the lines traditionally held by sitting presidents by ridiculing the Justice Department and making public statements calling for criminal executions. He called the Justice Department "a joke," called for the execution of the individual who plowed his van over pedestrians in Manhattan, and scolded the FBI "for not investigating his political opponents." Some political leaders and attorneys caution that President Trump's actions are inappropriate, while some conservatives state that "it would be dangerous to have an attorney general and an FBI director who do not answer to elected leaders." Nevertheless, President Trump's comments exceed what presidents have done, by way of political pressure, to law enforcement since Watergate.

Is the Terrorism Trial Process "a Joke"? Experts Say No

President Trump called the terrorism trial process "a joke," despite numerous convictions. Press Secretary Sarah Huckabee explained that President Trump was expressing his frustration with the system when he tweeted that the Manhattan attack terror suspect, Sayfullo Saipov, should be executed. President Trump overlooked the fact that most terrorists are not captured alive, and those who are captured have been dealt with swiftly.

President Assails "Joke" Justice and Seeks Visa Program's End

President Trump was eager after the recent terrorist attack in Manhattan to advance his policy on immigration. The driver of the van that plowed into pedestrians on a popular bike path was from Uzbekistan. Trump "pressed Congress to end a visa lottery program that allowed the immigrant driver into the country." The Diversity Visa Lottery program, referred to by President Trump, was enacted in 1990 with bipartisan support. It has since been proposed to be terminated as part of a comprehensive immigration plan that was passed by the Senate in 2013 but was "blocked in the House by Republicans."

Trump Accusers Feel Forgotten, But a Lawsuit May End That

Women who made claims of sexual misconduct against Donald Trump during his presidential campaign expressed dismay that their claims were swept under the rug, while recent accusations against high-profile executives received widespread support and attention. Temple Taggart, Summer Zervos, and Jessica Leeds are among the more than 10 women who made allegations against President Trump for misconduct before his presidency. Zervos brought a defamation lawsuit against President Trump, claiming that he defamed her while on the campaign trail, when he called her and his other accusers liars and Hillary Clinton operatives. Her suit is before Judge Jennifer Schecter of the New York Supreme Court.

Tariq Ramadan, Oxford Scholar, Takes Leave After Rape Allegations

Tariq Ramadan, professor of contemporary Islamic studies at the University of Oxford, was accused of rape by two women--one in 2012 and one in 2009. Another four women came forth with claims that he sexually harassed them in 2002, while in Geneva when they were students. Ramadan denies all the allegations. However,the University put him on a leave of absence so that he can address the accusations. It also stated that the leave of absence should not be taken as a presumption of guilt.

Below, for your browsing convenience, the categories are divided into Entertainment, Arts, Sports, and Media:


On the Dance Floor, Everybody Cut Footloose (Legally)

What would you do if a law that fined you for swaying at a rock concert was lifted? Shake your groove thing! That's what bars across the five boroughs are doing, since the 1926 Cabaret Law was struck down. The Prohibition-era law made it illegal to host musical entertainment, singing and dancing, or other forms of amusement without a license. The licensing process is onerous as well as cost prohibitive. Only 97 out of 25,000 establishments possess a license. It has been a long and arduous process to have the law repealed. The City Council vote was welcomed with dancing.

Comic Admits to Sexual Misconduct as Media Companies Sever Ties

In a written statement, Louis C.K. acknowledged that he engaged in sexual misconduct with the five women named in a recent New York Times article. He admitted that although he asked these women first if it was okay, he realizes now that because of the power he wielded, "the request wasn't a question to the women but a predicament." The repercussions have been swift. His publicist, agent, and several production companies have dropped him.

Swiss Won't Pursue Latest Polanski Case

The statute of limitations has expired for a 45-year-old sexual assault claim against Roman Polanski. His accuser, Renate Langer, now 61, filed a police report in September, claiming that the director raped her when she was 15. Polanski contests the new allegation. He remains a fugitive from the United States, after pleading guilty to having sex with a minor in 1978.

Weinstein Company Records Subpoenaed

Manhattan prosecutors issued a subpoena for Harvey Weinstein's former company and two law firms that represented him in furtherance of its investigation into sexual assault allegations. The prosecutors are seeking documents on Weinstein's settlements relating to sexual misconduct and payroll records, among others. The law firm Boies Schiller Flexner represented his production company, and the Morvillo firm defended him against sexual assault accusations in 2015.

Harvey Weinstein Hires Two Renowned Lawyers

Harvey Weinstein hired two high-powered attorneys on both coasts to represent him in his mounting sexual assault suits in Manhattan and Los Angeles. In Manhattan, he will be represented by Benjamin Brafman (who was a panelist during the 2017 EASL Annual Meeting), who has an esteemed reputation for high-profile clients, like Sean Combs for gun possession and Dominique Strauss-Kahn and Sanford I. Rubinstein, who both faced sexual assault allegations. On the West Coast, he will be represented by Blair Berk, who represented him last year, as well as artist CeeLo Green.

Weinstein Work Puts New Glare on Lawyers

Respected litigator David Boies recently found himself in the spotlight. Representing high profile clients ranging from Harvey Weinstein, to Adelphia, and even the New York Times, Boies is known to be hard-nosed. However, his ethics were recently questioned when it was reported that his firm, Boies Schiller Flexner, hired a private investigation company to investigate the New York Times, while the firm was representing Harvey Weinstein. According to a New Yorker exposé, the law firm helped hire the private investigation firm to block a negative article about Weinstein on which reporters for the New York Times were working. The New York Times is ending its relationship with the law firm. Many in the legal community are speculating as to whether there are any ethical violations.

Police Building Case to Arrest Movie Mogul

The Manhattan Police Department stated that it is gathering evidence against Harvey Weinstein related to allegations of sexual assault by actress Paz de la Huerta. According to Chief Boyce, de la Huerta has "put forth a credible and detailed narrative." However, because the allegations stem from an assault seven years ago and the fact that Weinstein is outside of jurisdiction, Boyce's department is building the case. Manhattan District Attorney Cyrus R. Vance Jr. further stated that his office is not yet ready to charge Weinstein.

Prosecutors Examining Transactions Connected to Weinstein and Charity

Harvey Weinstein allegations continue to fly, now for fraud. The office of the Attorney General for the Southern District of New York is investigating a $600,000 transaction to AIDS charity amfAR, chaired by fashion designer Kenneth Cole. Cole stated publicly that the Manhattan-based charity will be cooperating with federal prosecutors. The allegations stem from several transactions involving Weinstein's production "Finding Neverland," the American Repertory Theater, and the charity's fundraiser, chaired by Weinstein.

Spacey Accused of Assaulting an 18-Year-Old Man in 2016

Another person came forward with allegations of sexual assault by Kevin Spacey. Heather Unruh, a longtime TV broadcaster in Boston, issued a public statement that Spacey sexually assaulted her son last summer, when the boy was only 18 years old. The incident occurred at a Nantucket bar, and was reported to the Nantucket police. Spacey has been under fire since Anthony Rapp announced that he was sexually assaulted by the lauded actor 31 years ago, when Rapp was only 14 years old.

Spacey Is Dropped from Finished Movie

Hollywood continues to distance itself from Kevin Spacey in the aftermath of his sexual assault allegations. Director Ridley Scott dropped Spacey from his film, "All the Money in the World". Spacey had already filmed eight days of his character, John Paul Getty, yet will be recast by Christopher Plummer, an unusual move for a film already finished and scheduled for release in December. However, Scott was concerned that Spacey's involvement in the film may affect moviegoers and film critics, even though he is unrecognizable under his makeup for his supporting role.

Meek Mill's Lawyer Accuses Judge of Bias

After Robert Rahmeek Williams, professionally known as Meek Mill, was sentenced to two to four years in prison for probation violations, his attorney Joe Tacopina accused Judge Genece E. Brinkley of extreme bias against the rapper. Tacopina stated that the judge behaved inappropriately during the case by asking to be named in one of the rapper's songs and counseling on who should be his manager. Williams was on probation for a 2008 conviction on possession of guns and drugs. There are plans to appeal the sentence.

Lawyers Ready as Accusations of Sex Offenses Flood Internet

With online accusations come lawsuits. Sexual assault allegations continue to fly in the news, and especially on social media, with consequences for the accused as well as the accusers. One self-proclaimed victim is finding out the hard way. Melanie Kohler, who now runs a scuba-diving company in Hawaii, took to Facebook to announce that Hollywood producer and director Brett Ratner raped her in 2004 when she was doing marketing in Los Angeles. After a call from Ratner's attorney, Martin Singer, Kohler removed the post. Now, however, she's being sued for defamation. She has her own attorney, Roberta Kaplan. More claims and consequences are anticipated to be seen as more victims become emboldened to go public. Miles Feldman of the Los Angeles law firm Raines Feldman, which handles online defamation cases, said "there is less fear now in making these assertions in various media."

A Film Festival Tests the Limits of Independence in China

The newly launched Pingyao Crouching Tiger Hidden Dragon International Film Festival strives to provide a platform for filmmakers in China in the face of President Xi Jinping's era of censorship. The ambitious festival, which aims to be the Sundance of China, is the brainchild of Jia Zhangke. The festival was named in homage to director Ang Lee. For the festival to proceed, all 52 film entries had to be reviewed by government officials, and the festival had to adjust its dates around the Party Congress.

Awards Show Lifts Question Restrictions

The Country Music Awards felt backlash when it tried to wield a heavy hand. Organizers of one of the largest awards shows in the music industry tried to avoid politically sensitive topics by threatening "to revoke the credentials of journalists on the red carpet and backstage who direct coverage 'to the Las Vegas tragedy, gun rights, political affiliations or topics of the like'." Journalists and country music stars took umbrage, going on social media to complain about the CMA's new guidelines. The award show quickly changed its tune and lifted the restrictions.


Court Halts Museum's Plan to Put Rockwell Paintings and Others Up for Auction

The Massachusetts Attorney General appealed Judge Agostini's decision, asking the Massachusetts Court of Appeals for an injunction halting the sale until it had more time to review the museum's plan. The court granted the state's request, stating that "allowing the sale created more of a risk than stopping it." It issued an injunction until December 11, 2017.

Judge Agostini's decision would have allowed the Berkshire Museum to be able to proceed with its planned sale of 40 pieces of art from its collection. Largely criticized since its July announcement, the museum stated that the Sotheby's auction was necessary to "increase its endowment, renovate its building and expand programming." Some of the artwork include artists such as Norman Rockwell, Alexander Calder, and Albert Bierstadt. Rockwell's sons, museum members, and even the Massachusetts attorney general's office opposed the sale.

Court Orders Return of a Looted Pissarro

American couple Robbi and Bruce Toll must return French masterpiece "La Cueillette des Pois," or Picking Peas, by Impressionist Camille Pissarro to descendants of its pre-Holocaust owner, Simon Bauer. Tracing the history of ownership is an unfortunate yet common saga of art seized during the Holocaust. "...Bauer, a Jewish art collector, was detained during World War II in the Drancy internment camp near Paris. When he returned to Paris, he found his art collection had been confiscated by the Vichy government. Before his arrest, he made a detailed list of 93 pieces of art he owned. A Vichy art dealer then sold the painting and it passed through the hands of several buyers eventually landing at Sotheby's in 1966." The painting later came into Christie's possession. The Tolls purchased the work in 1995 at Christie's for $800,000. Last spring, the couple allowed its exhibition at the Musée Marmottan Monet. Bauer's grandson, who is 88, recognized the work when it was exhibited in Paris. The French court ruled against the Tolls but stressed they acted in good faith. It's not clear why the painting was never detected as looted. The Tolls plan to appeal the decision.

Art Fair Director Ousted Over Claims of Harassment

Benjamin Genocchio, executive director of The Armory Show, was replaced amid allegations of sexually inappropriate behavior. Five women claim that they suffered unwanted touching from Genocchio over several years, and a number of women acknowledged being aware of his behavior. He apologized if his behavior was interpreted as disrespectful.


Gymnast Aly Raisman Says Team Doctor Molested Her

American gymnast Aly Raisman revealed that Dr. Nassar, the Olympic team doctor currently awaiting trial for sexual molestation, assaulted her. The 23-year-old team captain revealed the incident on television and in her new book, Fierce. She won the 2012 gold medal for floor exercises. Raisman is the second athlete to come forward recently. Teammate McKayla Maroney and Jamie Dantzscher also accused Dr. Nassar. He is currently awaiting trial for 22 counts of first-degree criminal sexual conduct. Over 100 women have accused him of sexual abuse.

UCLA Basketball Team Returns Home from China Without Three Players Who Were Arrested for Shoplifting

UCLA freshmen LiAngelo Ball, Cody Riley, and Jalen Hill were arrested in China while participating in a Pac-12 basketball tournament. The three players are accused of shoplifting sunglasses from a Louis Vuitton store near their hotel. Under Chinese law, if convicted, the players face a one- to two-year sentence based on the value of the stolen sunglasses.

Leak May Expose Full Scope of Russian Doping

The World Anti-Doping Agency announced on Friday that it is now in possession of an electronic file thought to contain all testing data from early 2012 to mid-2015 on "thousands of drug screenings ran on Russian athletes." The global sports drug regulator received the database via a whistleblower. The information on the database is expected to confirm the depth and level of the drug doping violations made by Russia during the 2014 Winter Sochi games. With the new information, the International Olympic Committee could issue stiffer penalties against Russia, including preventing the country's participation in the upcoming Winter Games in South Korea.

Putin Sees Conspiracy After Russian's Doping Ban

The International Olympic Committee (IOC) issued another set of penalties against Russian athletes for their use of performance-enhancing drugs during the 2014 Winter Games in Sochi. Four cross-country skiers, Yuliia Ivanova, Alexey Petukhov, Evgeniya Shapovalova and Maksim Vylegzhanin--were disqualified and barred from competing in future Olympics. President Putin called the sanctions an American orchestration in retaliation for Russia's alleged involvement in the U.S. presidential election, stating that Americans are now trying to undermine his upcoming election. He is up for reelection in March 2018. The athletes will likely appeal the decision.

Ban Anthem of Russia? IOC Weighs Drug Penalties

It is expected that the International Olympic Committee will issue its decision on Russia's doping charges as early as December 5th. Some of the possible penalties being considered include barring Russia's national anthem from being sung during the games, preventing the athletic delegation from participating in the opening ceremony, and having the athletes compete under a neutral flag or wear a neutral uniform at an upcoming game. The IOC could also issue financial penalties and bar athletes as well as Russian leaders who were involved in the doping. It is expected that Russia will take the penalties lightly, as it has yet to comply with the IOC's 2015 mandate.

Jones Demands Vote on Goodell's Contract By All National Football League Owners

Dallas Cowboys owner Jerry Jones continues his crusade against National Football League (NFL) Commissioner Roger Goodell, now threatening to sue the NFL if it does not alter Commissioner Goodell's new contract extension. Jones is still upset about the way Goodell handled the suspension of Ezekiel Elliott and of players protesting during the national anthem. Jones claims that financial conditions have changed since May, and wants Goodell's new contract to have "less guaranteed pay and more incentives tied to the league's financial performance." He is demanding a full vote by the owners instead of the league compensation committee. It was unanimously agreed upon last spring to approve Goodell's contract extension and to allow the compensation committee to work out the details.

NFL Opposes Republican Tax Bill

If the proposed Republican tax bill is adopted as drafted, local governments could no longer issue bonds to help finance the building and renovating of stadiums. The NFL is opposed to the new bill, stating that "football stadiums stimulate economic development and federal tax breaks should be available." A 2016 Brookings Institute report showed that 36 out of the 45 most recent stadiums built or renovated received a partial tax subsidy.

Women's Marathon Champion Banned

Kenyan Jemima Sumgong, the 2016 women's Olympic marathon winner, tested positive for EPO, a performance-enhancing hormone. The Anti-Doping Agency of Kenya issued her a four-year ban from competing. She will miss the 2019 World Games and the 2020 Olympics in Tokyo.

Powerful Voice, Tied to Bribery Case, Resurfaces

This week's annual meeting of the Association of National Olympic Committees brought out its beleaguered leader who had been out of the spotlight recently. Sheikh Ahmad al-Fahad al-Sabah of Kuwait was named a co-conspirator for bribery and corruption earlier this spring by former Guam soccer leader, Richard Lai. In his April plea, Lai claimed that Sheikh Ahmad made off-the-book payments from the Olympic Council of Asia (of which Sheikh is president) to him to "influence key appointments in regionals and international soccer bodies." Although Sheikh Ahmad is currently being investigated by FIFA and the IOC, the leaders that gathered this week "ratified their support by acclimation of a resolution" of Sheikh Ahmad.

Ezekiel Elliott On Again, Off Again

Dallas Cowboys' running back Ezekiel Elliott was going to play on Sunday, Nov. 12th, according to a Nov. 3rd federal appeals court ruling that blocked an earlier ruling reinstituting his suspension. However, that ruling was overturned. On Nov. 9th, the United States Court of Appeals for the 2nd Circuit "terminated a temporary administrative stay of the suspension and denied a request for a temporary injunction." Many have found it hard to keep up with the status of his six-game suspension issued by NFL Commissioner Goodell that was due to allegations of domestic assault in August.®ion=Footer&module=MoreInSection&version=WhatsNext&contentID=WhatsNext&pgtype=article

Ex-Dolphin Pushes NFL on Concussion Research

Nick Buoniconti, a former Hall of Fame linebacker and leader of the Miami Dolphins in the 1970s, announced that he will donate his brain to medical research on brain concussions. Buoniconti suffers from diminished capacity stemming from too many hits to the head. He was inspired to contribute to chronic traumatic encephalopathy (CTE) research due to the NFL pulling its funding from Dr. Ann McKee from Boston University's CTE Center. The CTE Center has found links between head hits and CTE. Former NFL players Warren Sapp, Matt Hasselbeck, and Leonard Marshall also pledged to donate their brains to the research.

How Climate Change Affects Marathon Times

Should marathon race times be adjusted for temperature conditions? A recent report "analyzed over 4.7 million race finishing times from 20 years of data on almost 900 marathons," and determined that temperature matters. With day of race temperatures increasing more than 20 degrees, the report states that the best times are run on days with temperatures in the 40s. It is expected that finish times will increase almost 13 seconds during the New York City Marathon, when temperatures are in the 60s. Changes in temperature could affect planning sporting events in the future.


Russia Warns of Crackdown on U.S. Media, Including CNN

Russian government officials stated that they would impose a crackdown on American news outlets in retaliation to the U.S. Justice Department requiring Russia Today to register as a foreign agent. American intelligence sources label the state-run news outlet as a propaganda tool. Russia threatened to also designate U.S. media outlets operating in Russia, such as CNN, as hostile intelligence outlets or foreign agents, thereby restricting their access and distribution.

Racial Quip Becomes a Rallying Cry for Brazilians

A video capturing a Brazilian news anchor commenting to a guest that a car honking its horn while driving by was "a Black thing. No doubt.," has gone viral to much indignation. William Waack, the anchorman on Brazil's leading television station Globo, was suspended until the company can investigate. The cameraman who recorded the exchange stated he didn't release it at the time out of fear of losing his job. He no longer works for the company. The public reaction has taken an interesting turn, with postings on social media of the accomplishments of Black Brazilians with the hashtag #It'sABlackThing.

Disney Ends Ban on Los Angeles Times After Fierce Backlash by News Outlets

The Walt Disney Company had issued a blackout against The Los Angeles Times, stemming from a September 2017 article exposing the company's business ties with Anaheim, California. After experiencing its own backlash from other media outlets and entertainment leaders, the company is reversing its decision. The Los Angeles Times will also be allowed to attend advance screenings of Disney films.

Television Station Is Attacked in Afghan Capital

Shamshad TV, a leading television station in Kabal, Afghanistan, was attacked by two armed men. According to a spokesperson for the Afghan Health Ministry, 2 people were killed and 19 were wounded. The rest of the roughly 150 employees were able to escape. Online posts claim that the Islamic State is responsible for the attack.

In Reversal, Tech Titans Back Bill on Sex Trafficking

Tech giants, such as Facebook, Google, and Twitter, have succumbed to political pressure and now support the Stop Enabling Sex Trafficking Act. Initially opposing the bill, the tech companies gave up their fight when battered recently on Capitol Hill for their facilitation of Russian influence in the 2016 U.S. presidential election. The bill "allows victims to sue websites who knowingly support and assist sex trafficking on their sites." According to Michael Beckerman of the Internet Association, "the bill will grant victims the ability to secure the justice they deserve, allow internet platforms to continue their work combating human trafficking, and protect good actors in the ecosystem." The new act amends Section 230 of the 1996 Communications Decency Act, which protects online companies from
liability over content they host on their sites.

DNAinfo and Gothamist Shut Down After Workers Join a Union

On October 26th, DNAinfo and Gothamist voted to join a union, the Writers Guild of America East. It wasn't an easy road to unionization with its owner, Joe Ricketts, who became owner when DNAinfo bought Gothamist earlier this year, refusing to recognize the union. The National Labor Relations Board had to conduct the vote. Before the vote, Ricketts wrote to his employees, and stated that as long as his money is financing the company, he will be the one deciding how it will be managed. The vote carried with 25 out of 27 workers agreeing to unionize. On November 2nd, Ricketts shut down the companies.

November 8, 2017

New York Paid Family Leave Forms Are Available

By Kristine A. Sova

The New York Workers' Compensation Board has prepared and released the forms necessary for implementing the New York Paid Family Leave Law, which goes into effect on January 1, 2018. The forms are available on the New York State website.

The available forms include the PFL-1 form, through which employees may request leave, and other forms specific to each covered purpose of paid family leave. The PFL-1 form is attached to the other specific forms pertaining to the sought-after leave:

PFL-2 - for employees requesting leave to bond with a newborn, adopted child or foster child,
PFL-3 and PFL-4 - for employees requesting leave for a family member's serious health condition,
PFL-5 - for employees requesting leave to assist family member(s) due to another family member's active military duty or impending active duty abroad
Also available on the New York State website are the waiver form for employees who will not reach eligibility as well as the Employer's Application for Voluntary Coverage (PFL-135 and PFL-136).

November 5, 2017

Week In Review

By Tiombe Tallie Carter, Esq.

President Assails "Joke" Justice and Seeks Visa Program's End

President Trump used the recent terrorist attack in Manhattan to advance his immigration agenda. The attack on pedestrians walking on a popular bike path caused the death of eight people. The devastating midday attack was decried by many as a cowardly, horrendous act. President Trump took to Twitter, tweeting that the American justice system is "a joke" and that he would send the perpetrator to Guantanamo Bay, Cuba. He later reversed his position on the military prison, but continued to tweet that the perpetrator should get the death penalty.

Securities Exchange Commission Warns Celebrities Who Promote Virtual Coins

The Securities Exchange Commission (SEC) issued a statement this week warning celebrities of possible criminality when promoting virtual coins. The SEC's Enforcement Division and Office of Compliance Inspections and Examinations stated that "celebrities and others using social media networks" to make endorsements "to encourage the public to purchase stocks and other investments...may be unlawful if they do not disclose the nature, source, and amount of any compensation paid, directly or indirectly, by the company in exchange for the endorsement." Investors are warned to seek additional information before being influenced by persons who may not have the expertise to ensure that the proposed investment is appropriate.

Protecting the Disgraced

There's a term for when high-profile employees benefit from "the willingness of companies' supposed overseers to ignore credible allegations in order to retain a perceived star." The Equal Employment Opportunities Commission calls them "superstar harassers." According to a 2016 EEOC report on sexual harassment, superstar harassers only account for a small portion of reported allegations. However, because of their status, they cast a long shadow. "Superstars are able to evade the consequences of their actions for years, and they exert outsize influence over their organizations." An employer's reasoning that it cannot afford to lose a perceived "high-performer" is often incorrect, because such "toxic employees" tend to drive out other employees, and the costs to keep the superstar, such as settlements and legal fees, far outweigh the benefits of keeping the superstar.

Below, for your browsing convenience, the categories are divided into Entertainment, Arts, Sports, and Media:


Top Producer Faces Harassment Allegations

Brett Ratner, another prominent Hollywood producer, is accused of sexual harassment by several actresses. Ratner, whose films include "Rush Hour" and "The Revenant," stepped away from his projects with Warner Brothers where he has a co-financing agreement. Some of his accusers include Natasha Henstridge and Olivia Munn. The allegations stem over a period of two decades.

Netflix Halts Production on "House of Cards" Amid Scandal, and Actor Kevin Spacey is Suspended Pending an Investigation

Netflix, the streaming media service, suspended production on its hit series "House of Cards" after allegations against its star, Kevin Spacey. Spacey was accused by actor Anthony Rapp of "unwanted sexual advances toward him in the 1980s, when Mr. Rapp was 14 and Mr. Spacey was in his mid-20s." The show was already scheduled to end this season, according to a Netflix spokesperson. As a result of the scandal, Spacey's online acting lesson videos on MasterClass have been pulled, and a documentary about Gore Vidal in which he was to star and produce is no longer moving forward.

Paralyzed Concertgoer Sues Travis Scott

Travis Scott, a rapper known for his "high-octane punk shows," is being sued by a concertgoer. Kyle Green was paralyzed in April when he was pushed from a third-story balcony while attending Scott's concert at Manhattan's Terminal 5. Videotape from The Bowery Presents concert shows Scott encouraging concertgoers to jump from the second-floor balcony. Green, a 23-year-old student, must now use a wheelchair. The NY State Supreme Court lawsuit was filed in Manhattan and also names Scott's manager, the concert promoter, and the concert's security company.


Artist's Ex-Assistant Charged with Theft

Arturo Rucci, a former assistant of prominent visual artist Sean Scully, was arrested recently for stealing the painter's work. Scully, whose works have sold for over $1 million, discovered that his works were missing by a chance email from an auction house that was attempting to confirm details on three works in its possession. His works were stolen from his storage space by Rucci, who worked for him as an inventory worker. Rucci's arrest is yet another in a series of arrests for theft by artist assistants.

A Scapegoat for the Fashion Industry

Some of the biggest fashion magazines in the industry have begun to cut ties with Terry Richardson after a renewed outcry of his sexual harassment allegations. In 2014, Richardson was accused of "cavorting naked at shoots and forcing his penis on models" and was effectively blacklisted. Charges were never brought forward, and no new allegations have arisen. He has since entered therapy, married, and became a father. He had begun to gain work again in the fashion industry when Elle's editor Nina Garcia commissioned him for work. However, Conde Nast International, Net-a-Porter, and Hearst and brands Valentino, Bulgari, and Diesel recently cut ties with Richardson. Many are speculating that he is being made a scapegoat in light of the recent rash of sexual harassment accusations across the entertainment and media industries.

An Ancient Limestone Relief Is Confiscated at an Art Fair

The European Fine Art Fair was disrupted last week when prosecutors "seized an ancient limestone bas-relief of a Persian soldier with shield and spear" from the Park Avenue Armory where the fair was in session. London antiquities dealer Rupert Wace was selling the artifact valued at $1.2 million. The Manhattan district attorney's office handled the seizure. No arrests were made.

Where Mice Are Underfoot, Some Call It Cruel

"The Social Network," an art exhibit featuring live mice in clear Plexiglas boxes designed to be stepped upon, drew criticism that calls into question cruelty of animals. The artist Joseph Grazi, who keeps the mice well fed, says the animals are feeder mice that were bred to be eaten. Critics protested the exhibit. Natasha Millikan, a rodent activist, explained that the mice "have the instinct to be terrified by anything up above them. Even shadows." The Guggenheim dismantled exhibitions with live animals recently. The Castle Fitzjohns Gallery owner, where "The Social Network" may be viewed and stepped on, sees things differently, stating, "the public response has revealed the challenge of weighing criticism against artistic repression."


Judge Reinstates Elliott's Six-Game Suspension

Ezekiel Elliott has 24 hours to appeal a U.S. District Court Judge's decision to deny the player's union request for a preliminary injunction. Without an appeal, Elliott will be out beginning on Sunday, November 5th with eligibility to return on December 17th. National Football League Commissioner Goodell initially issued his suspension, stemming from allegations of assault in 2016.

Astros' Yuli Gurriel Banned From Five Games for Racist Gesture, but Not During the World Series

Yuli Gurriel, the Houston Astros' first baseman, was caught on camera in the dugout pulling his face back to slant his eyes. He also appeared to say "Chinito" toward Yu Darvish, from the Los Angeles Dodgers, from whom he had just homered. This racially insensitive gesture went viral and cost Gurriel a five-game suspension starting at the beginning of the 2018 season. The Major League Baseball Players Association decided on the punishment start date in consideration of Gurriel's teammates and a financial penalty that could only be applied in the new season.


Fiery Exchanges on Capitol Hill as Lawmakers Scold Facebook, Google, and Twitter

Members of the Senate Intelligence Committee took the tech giants to task for "failing to better identify, defuse and investigate Russia's campaign to manipulate American voters over social media during the 2016 presidential campaign." Facebook, Google, and Twitter each sent its general counsel to testify at the ire of committee members on both sides of the aisle, who were expecting to hear from the high-profile CEOs who were noticeably absent.

Russian Content on Facebook, Google, and Twitter Reached Far More Users Than Companies First Disclosed, Congressional Testimony Says

Testimony at recent congressional hearings revealed how far and vast the Russian content was on social media during the 2016 campaign period. Facebook, Google, and Twitter disclosed that the numbers reported earlier were considerably low. Many speculate that the tech companies purposely under reported the numbers so as not to raise scrutiny. Facebook now reports that as many as 126 million people were exposed to the Russian content, up from its original 10 million figure. Google and Twitter also increased their earlier reports.

Top Editor at National Public Radio Forced Out Amid Harassment Accusations

Michael Oreskes, National Public Radio's (NPR) senior vice president for news and editorial director, was placed on leave due to allegations of sexual harassment. Multiple women accuse him of the offenses while he was the Washington bureau chief at the New York Times in the late 1990s. Oreskes joins the ranks of Mark Halperin, Leon Wieseltier, Hamilton Fish, Roy Price, and Harvey Weinstein who have all fallen due to similar allegations.

Filmmaker Seeks to Redo Documentary on Weinstein

Barry Avrich, a Canadian filmmaker who produced a 2011 documentary on Harvey Weinstein titled "Unauthorized: The Harvey Weinstein Project," would like to remake the film. Avrich claims that the online movie distributed by IFC Films was not only "sanitized," but held back from theatrical release in favor of Weinstein. IFC Films refutes these claims. Avrich may proceed with a new film without IFC Films.

Publisher Under Fire for Blocking Article Access

Springer Nature, a leading academic publisher whose publications include Scientific American, International Politics, and Nature, has bowed to the Chinese government's pressure to censor articles on its Chinese websites. Chinese president Xi Jinping has cracked down on publishers who provide content relating to human rights, politics, and other subjects that the Communist Party considers sensitive. Springer Nature defended its actions by stating that it did so to avoid even greater censorship by China.

October 29, 2017

Keitel v E*TRADE Fin. Corp., 2017 NY Slip Op 06624, (September 26, 2017 App. Div. 1st Dept.)

By Marc Jacobson

The Oscar and Golden Globe nominee, and Co-President of The Actor's Studio, Harvey Keitel, sought to enforce an offer made to him to appear in what seems to be a commercial for E*Trade. Although Keitel's agent required that whatever offer was submitted to them for Keitel's services had to be "firm and binding," the defendant's offer, which had additional conditions attached to it, was held to be not "firm and binding" so therefore no agreement was reached and judgement for the defendant/respondent was affirmed.

The agent requested that any offer made for his services be "firm and binding." The defendant acknowledged this request to the agent. Internal communications on the defendant's side showed that he intended to make a "firm offer." The defendant's cover email stated the offer was "firm and binding," but also that the offer was contingent on the parties agreeing to compensation as well as the script. The term sheet attached to that email stated that it "sets forth the general intent of the parties to discuss in good faith the terms and conditions" of the deal, and that "neither party shall be bound until the parties execute a more formal written agreement."

The Appellate Division affirmed Justice Ramos' decision in the lower court that no agreement was formed, because the term sheet by its very terms suggested that it was not binding without execution of a formal written agreement. The court determined that Keitel's reliance on the email, while effectively ignoring the term sheet itself, was not reasonable. As no binding agreement existed, the court affirmed the decision below.

The court refused to consider evidence with respect to the defendant's offer to pay a common "kill fee" after the dispute arose, because such a payment was in the nature of a settlement offer, and was not admissible.

For me, the process is analogous to the "battle of the forms" embodied in Article 2 of the Uniform Commercial Code, governing the sale of goods. UCC Section 2-207 states:

(1) A definite and seasonable expression of acceptance ... sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.
(2) The additional terms are to be construed as proposals for addition to the contract.  Between merchants such terms become part of the contract unless:
(a) the offer expressly limits acceptance to the terms of the offer;
(b) they materially alter it;  or
(c) notification of objection to them has already been given or is given within a reasonable time after notice of them is received.
(3) Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract.  In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this Act.

Practitioners should recognize that emails accompanied by term sheets may create confusion with regard to the parties' intention. However, it is good to know that at least in the First Department, the words of a term sheet are more important (dare I say trump?) an email.

Week in Review

By Eric Lanter

The Environmental Protection Agency Cancels Talk on Climate Change by Agency Scientists

Under the Trump administration, the Environmental Protection Agency (EPA) is headed by Scott Pruitt, a skeptic of climate change. The EPA canceled the appearance of three scientists at a climate change conference this week, which a spokesman confirmed without any further comment. Some analysts have viewed the cancellation as confirmation that the EPA, under Pruitt's direction, denies the existence of climate change and to engage in "scientific censorship."

Below, for your browsing convenience, the categories are divided into: Entertainment, Arts, Sports, and Media:


The Former Weinstein Company Empire Continues to Unravel

The New York Attorney General, Eric Schneiderman, opened an inquiry into the Weinstein Company as to whether sexual misconduct and harassment of its co-founder Harvey Weinstein was part of a broader environment of gender discrimination and other unlawful activity. The Attorney General's Civil Rights Bureau served the company with subpoenas for information and documents that are expected to show whether there is a history of discrimination within the company.

Harvey Weinstein's friend and colleague, Fabrizio Lombardo, is also under scrutiny for potentially being an accomplice to Weinstein's sexual escapades for the past several decades. Lombardo headed Miramax's Italian division, but was known to be a close contact with Weinstein. The nature of their relationship, says one accuser, was that Lombardo brought women to Weinstein under the pretense that he was bringing them to a party with Weinstein, only to find that Weinstein was alone and forced himself on them. Lombardo, at his attorney's office in Rome, denied the allegations and the characterizations that the accusers have outlined.

The Weinstein Company sought financial help. It secured a preliminary agreement with Colony Capital, which deal, however, fell apart this week. Colony is a private equity firm that is experienced in acquiring and renewing distressed Hollywood assets. The Weinstein Company still has other suitors, such as Fortress Investment Group, which has been working to provide an offer of $35 million that would keep the studio operating for several months. It is unclear what exposure the company may face in the coming months and years, as the accusations against Harvey Weinstein may manifest in further payouts or litigation.

Weinstein is also suing the company he co-founded in an effort to obtain access to records and emails that he said are necessary to defend himself against the more than 50 women who have accused him of sexual harassment or rape in recent weeks. The complaint, filed in Delaware Chancery Court, indicates that his email account and personnel records will exonerate him from wrongdoing, and also help him prosecute a case against the company for wrongful termination.

The Turtles Lose Battle Over Pre-1972 Copyrights

The Turtles band lost its battle over the right to collect royalties from pre-1972 recordings, when Florida's Supreme Court ruled that Florida common law does not recognize that right.

The decision is available here: sc16-1161.pd.pdf

Eminem's Publisher Triumphs in New Zealand Copyright Battle

The National Party of New Zealand is required to pay Eminem's music publisher $413,000 for infringement of copyright. Eminem's hit song "Lose Yourself" was the subject of the copyright infringement, as the defendant used a suspiciously similar song it called "Eminem Esque" in its campaign advertisements in 2014. While the defendant's lawyers contended that it did not substantially copy the song, Justice Helen Cull found it to be strikingly similar and "with minimal discernible differences" between the two songs.


Rockwell's Children Sue Berkshire Museum to Stop Sale of His Works

The Berkshire Museum, in an effort to reinvent itself and to improve its finances, placed two Norman Rockwell paintings up for auction, causing Rockwell's children to file suit to stop the sale. The plaintiffs argue that Rockwell donated the paintings to the institution, and the museum has "grossly exaggerated" its financial difficulties to create an appearance of necessity for selling the works that amounts to a breach of the board of director's fiduciary duty. They also argue that the selling would violate the statute that created the museum, which requires gifts to be for "the people of Berkshire County and the general public." Attorneys for the museum insist that the lawsuit is "factually and legally flawed."

Communism's Answer to Mickey Mouse is Thrust Into a Very Capitalist Dispute

A popular cartoon mole that was meant to be the Eastern Bloc's equivalent of Mickey Mouse, a forbidden symbol in that region, caused a controversy after its creator, Zdenek Miler, died in 2011. Miler left his company to five direct relatives, and his granddaughter Karolina Milerova has since contended that he gave her full control of all copyrights he owned while on his deathbed. She used this supposed control to establish her own company, but a court has rejected the claim, stating that the contract signed on his deathbed was too vague. Milerova indicated she will take the case to a higher court and continue her fight.

Leon Wieseltier Admits Offenses Against Female Colleagues

A prominent editor of The New Republic for three decades, Leon Wieseltier, has apologized for offenses against his female colleagues in his years of work, as several women came forward accusing him of sexual harassment and inappropriate advances. This apology came as Wieseltier was working to create a new magazine, called Idea, in collaboration with Emerson Collective.

Women Accuse Knight Landesman of Sexual Harassment

Hours after a lawsuit was filed in New York against him accusing him of sexual harassment of nine women, Knight Landesman, a publisher of Artforum magazine and a well-known broker in the community, resigned this week. The revelations surrounding his sexual harassment and resignation are just the latest example of women vocalizing the sexual harassment of a man long known to have a propensity for the behavior and causing their resignation or firing.

Ex-Theater Agent Sentenced for Fake Play

A former theater agent, Roland Scahill, confessed to a scheme in 2014 and 2015 where he bilked investors of hundreds of thousands of dollars to back a nonexistent Broadway play headed by popular actress Lupita Nyong'o and streamed on Netflix. He confessed in court to fabricating the entire story and defrauding 10 investors of $205,000, leading to a sentence of six months in jail.

Panel Finds That Cancer Did Not Kill Pablo Neruda

The Chilean poet Pablo Neruda was supposed to have died of cancer in 1973, which was the cause of death reported in his death certificate. However, his former driver, Manuel Araya, reported in 2011 that Neruda in fact was poisoned when he had an injection of an unknown substance at a private clinic in Chile. This caused a judge to order in 2013 that his remains be exhumed and sent to forensic genetics experts. The experts have found a potentially deadly bacteria in a sample and have also found it impossible that Neruda died from cancer. The panel of experts has been asked by the judge to now determine the origin of the bacteria that they found, as it may indicate whether he was killed or died of natural causes other than cancer.

'Diller Island' is Back From the Dead

Approximately a month and a half ago, Barry Diller admitted defeat on his effort to build a pier in the Hudson River that was a park and a performing arts center. Governor Andrew Cuomo has now intervened, and Diller agreed to revive the project, while his opponents also agreed to stop the legal battle against Diller's. Cuomo promised to complete the 4.5-mile-long Hudson River Park, which stretches from Battery Park City to 59th Street and includes the site where Diller is to develop the pier, and he has promised to protect the estuary, which was a prime concern of opponents to the development. While others have questioned placing a performing arts center on a pier in the Hudson River, Diller is now prepared to move forward with his experiment.


Iditarod Doping Mystery: Who Slipped Tramadol to the Dogs?

Doping has now made its way to an unexpected event: the Iditarod. Dallas Seavey's team of four dogs have brought him to be a four-time champion of the 1,000-mile trek across Alaska, but his dogs tested positive for an opioid pain reliever, Tramadol. He claimed in a video posted on YouTube that he was likely sabotaged by a competitor. While many others involved in doping have taken to coming up with unreasonable, unrealistic excuses for the doping, his competitors believe his excuse, calling him "an honest and upstanding Iditarod competitor." The Iditarod Trail Committee has not disciplined Seavey or asked him to return his prize money.

Former Player Blasts National Football League for Hiding CTE Risks

A former National Football League (NFL) player, Chris Borland, became well-known for leaving the NFL after his rookie season, calling the long-term health risks "not worth it." He has now appeared in a public service announcement denouncing the NFL for hiding the risks of brain damage resulting from playing the game. While the NFL has not returned a New York Times' call for comment, it has touted its rule changes to the game that are designed to maximize safety for the players.

Guatemalan Soccer Executive Gets Eight Months in FIFA Corruption Case

In the Eastern District of New York, Judge Pamela Chen sentenced a former Guatemalan judge, Hector Trujillo, to eight months in prison for accepting and laundering hundreds of thousands of dollars in bribes. He also was required to pay $415,000 as restitution for the victims. His sentencing is part of a broader corruption case in global soccer implicating more than 40 people four years ago. Trujillo's sentence is likely to inform the sentences of the more than 20 defendants who are waiting resolution of their own cases.

Israeli Judoka Wins Gold but Not Under Israeli Flag

At a judo competition in Abu Dhabi, an Israeli judoka, Tal Flicker, competed and won a gold medal this week. The United Arab Emirates has banned Israeli athletes from wearing their country's symbols on uniforms and has not permitted the displaying of its flag or the playing of its national anthem during the tournament. At the award ceremony, he mouthed the words to the Israeli national anthem while the Judo federation flag flew above him.

Teen Golfer Denied Trophy

A Massachusetts high schooler finished first in a regional golf tournament, but was denied a trophy and the opportunity to play at the state high school golf championships solely because she is a female. She expressed her disappointment to a local media outlet, but the Massachusetts Interscholastic Athletic Association, which promulgates the rules that apparently bar the teenager from competing, did not immediately respond to a request for comment.

Figures Show Rise in Positive Doping

The World Anti-Doping Agency announced that there has been a rise in doping in sports from 2015 to 2016. The report indicates that positive results rose from 1.26% of tests in 2015 to 1.6% in 2016.


Federal Communications Commission to Loosen Rules on Local Media Ownership

The Federal Communications Commission (FCC), headed by Ajit Pai, announced that it is planning to eliminate its decades-old rules regarding media ownership that are designed to protect local coverage and diversity in the media. It is scheduled to vote in November to roll back the rules. This is part of a pattern of the FCC since Pai was appointed by President Trump in January, the result of which has been to deregulate the industry.

O'Reilly Settled Claim, Then Renewed Fox Contract

In January 2017, Bill O'Reilly entered into a $32 million agreement with an accuser, six months after the organization ousted its chairman amid a sexual harassment scandal. Then, in February, Fox News renewed O'Reilly's contract, granting him a four-year extension with $25 million a year. These revelations come as Fox News is attempting to show its board, employees, and the public that it has cleaned up the organization and excised those who took to unlawful activity. The chief executive of 21st Century Fox said that he did not know the size of O'Reilly's $32 million settlement until recently, as it was not a private settlement.

A Long-Delayed Reckoning of the Cost of Silence on Abuse

As revelations of sexual harassment and abuse come to the surface from influential figures like Bill O'Reilly, Harvey Weinstein, James Toback, and John Besh, it is clear that many came to know of their behavior, but were silenced with money or nondisclosure agreements that were part of settlements. Investigative journalists uncovered the revelations and publicized them, which permitted other women to come forward to the media and add to the lists of revelations. Some analysts see the mounting revelations as a national reckoning that is changing the culture of the industry, and more broadly the country, to hold accountable those who commit sexual assault. To further that cause, the New York State legislature is "considering legislation that would void contract provisions that keep employees from bringing harassment and discrimination claims."

Mark Halperin, Top Political Journalist, Faces Multiple Claims of Harassment

A prominent political journalist, Mark Halperin, was accused of sexually harassing multiple women while working as the director of political coverage at ABC News. Five unidentified women described his unwanted and aggressive sexual advances, and the fallout has been swift since the revelations. While he had television appearances on MSNBC and HBO, those and an upcoming book tour were canceled in light of the revelations.

Russia's Favored Outlet is an Online News Giant that YouTube Helped

The world's most visited video site, YouTube, has had a cozy relationship with Russian news channel RT, which became the first news organization to surpass one billion views on YouTube in 2013. The relationship is now being scrutinized, as investigators in Washington examine the "scope and reach of Russian interference in United States politics." During the 2016 election campaign, RT was a prominent critic of Democratic nominee Hillary Clinton, reporting that she was involved with corruption and in poor physical and mental health. YouTube's community guidelines ban nudity or copyright violations but not propaganda, which many analysts say best describe RT's content, as it is an arm of the Russian government.

Russian Journalist Stabbed, Renewing Fears of Attacks on Media

On Monday, a man wielding a knife broke into the Moscow talk radio station Echo of Moscow and stabbed an announcer in the throat, raising concerns about the safety of journalists in Russia. The station reports on a range of political views and has been known to host liberal commentators and politicians when they are in Moscow. The victim, Tatyana Felgenhauer, was in critical condition at a Moscow hospital, but her life was not at risk. Police have not announced the assailant's motive.

UK Lawmakers Ask Facebook About Russian Influence in Brexit Vote

Britain's Parliament has raised inquiries with Facebook, Twitter, and other internet companies to determine whether Russians had used social media to influence Britain's vote to leave the European Union, often called Brexit. The vote to leave, cast in 2016, continues to be a point of contention for Britain as the approach for leaving the European Union is far from clear, and Russian interference with the vote would only further complicate the process. Facebook's spokesman has vowed to respond to Parliament's request once it has been reviewed.

Russia Fanned Flames with Twitter, Which Faces a Blowback, Causing Twitter to Ban Two News Outlets from Advertising

One Twitter account, @TEN_GOP, was able to reach more than 130,000 followers in Tennessee throughout the course of the campaign for the election in 2016, which was more than 10 times the followers for the Republican Party's Twitter handle for the state. The account was a Russian troll account designed to stoke division in the country, and its content was filled with "inflammatory misinformation." Twitter came under fire for allowing the account to spread misinformation, and, in an effort to prevent an appearance of supporting Russian propaganda, announced that it will ban RT and Sputnik, two Kremlin-backed international news outlets, from advertising on the site. The company announced that these steps are to "help protect the integrity of the user experience on Twitter."

Reddit Bans Nazi Groups and Others in Crackdown on Violent Content

The online internet forum Reddit implemented a new policy of banning content that glorifies violence, eliminating its forums for Nazi, racist, and white supremacy groups from the site's forums. Its administrators had previously flagged posts, but its policy was "too vague" to reliably eliminate posts that could even lead to "mild violence." Now, if content is considered "borderline," it will be tagged with a warning.

October 21, 2017

Week in Review

By Michael Smith

Below, for your browsing convenience, the categories are divided into Entertainment, Art, Sports, and Media. First, of general interest:

Federal Judge Blocks Newest Travel Ban

District of Hawaii judge Derrick Watson has converted the temporary restraining order he issued last week preventing Trump's new travel ban from being enforced into a preliminary injunction.

Trump Taps Paul Weiss Partner to Lead Federal Trade Commission

President Trump is expected to nominate Joseph Simons, an antitrust lawyer at Paul, Weiss, Rifkind, Wharton & Garrison LLP, to head the Federal Trade Commission, along with two new commissioners, Noah Phillips and Rohit Chopra.

Emoluments Clause Lawsuit Tested

On Wednesday, the parties in a lawsuit against President Trump alleging violations of the "emoluments clause" of the U.S. Constitution argued for and against the Department of Justice's (DOJ) motion to dismiss before U.S. District Judge George Daniels in Manhattan. The decision is expected in a month or two.

University of Florida Protesters Shout Down White Nationalist

When white nationalist Richard Spencer spoke at the University of Florida last week, protestors inside and outside the auditorium protested with signs and chants. There were isolated instances of violence, including one incident involving a gunman who fired at a bus stop but did not hit anyone.

Famous Actors Share Stories of Harassment

Jennifer Lawrence, Reese Witherspoon, Lady Gaga, Rosario Dawson, Anna Paquin, and Evan Rachel Wood are among the stars in the entertainment industry speaking out against sexual harassment and assault, and sharing their own experiences.


Motion Picture Academy Expels Weinstein

On Saturday, the Academy of Motion Picture Arts and Sciences voted to immediately expel Harvey Weinstein. Weinstein is only the second member to be permanently ousted. The first was a character actor expelled for leaking "screener" copies of films contending for the Oscars. Some are anticipating a call for additional expulsions based on similar issues.

Producers Guild, Television Academy Move to Expel Weinstein

The Producers Guild of America voted unanimously to terminate Harvey Weinstein's membership in the organization. Weinstein will have a chance to respond before a final decision is made on November 6th. The Television Academy also set a disciplinary hearing for November.

Weinstein Resigns from Board, Affiliates Distance Themselves

Harvey Weinstein resigned from the board of directors of the Weinstein Company in the face of mounting allegations of sexual assault and harassment. Toyota is considering withdrawing Lexus as a sponsor of Weinstein's "Project Runway," and Lifetime (which airs the show) removed Weinstein's executive producer credit and his company's logo from the show.

Weinstein Finds Investor

On Monday the Weinstein Company announced that private equity firm Colony Capital had agreed to provide a cash infusion to the ailing company. A board member also said that Colony was in negotiations to purchase the company.

Tatum Breaks Ties with Weinstein

Channing Tatum announced that he will no longer be working with the Weinstein Company to develop a film about a boy dealing with sexual abuse.

Harvard Takes Back Weinstein's Medal

In 2014, Harvard University honored Harvey Weinstein with the W.E.B. Du Bois Medal for contributions to African American culture. Last week the school's Hutchins Center for African and African American Research decided to revoke the award.

Los Angeles Police Department Investigating Rape Claim Against Weinstein

The Los Angeles Police Department is investigating allegations that Harvey Weinstein raped a woman in 2013 at the Beverly Hills Hotel.

Bob Weinstein Accused of Sexual Harassment

A former executive producer of the Spike TV series, "The Mist," accused Harvey Weinstein's brother, Bob Weinstein, of sexually harassing her. The Spike network is investigating those allegations, which Weinstein denies.

Amazon Studios Boss Resigns Amid Sexual Harassment Allegations

Roy Price, former head of Amazon Studios, has resigned. He was accused of harassing a producer and doing nothing after an actress told him she was assaulted by Harvey Weinstein. His resignation prompted discussions inside and outside the company about the lack of women in a position to dictate policy.

Canadian Comedy Festival Founder Resigns Amid Allegations of Abuse

Gilbert Rozon, founder of Canadian comedy festival "Just for Laughs," resigned after being accused of sexual harassment or abuse by nine women.

Young Comedians Navigate Censorship to Build Careers in Stand-Up

Stand-up comedy, long standard fare in the West, is just starting to bloom in more authoritarian countries like China and Singapore. Comedians are required to obtain permits, and submit their jokes to censors in advance, but many young comedians are--with the help of more lucrative corporate gigs--making a career out of comedy.

Sean Penn Claims That Netflix El Chapo Documentary Will Put Him in Danger

Netflix's documentary series, "The Day I Met El Chapo: The Kate del Castillo Story," centers around a meeting between actor Sean Penn and infamous drug dealer Joaquín Guzmán Loera, a/k/a "El Chapo". Penn, represented by Ted Boutros Jr., claims that the series misrepresents that Penn cooperated with the DOJ in El Chapo's capture, and therefore puts Penn in danger.

New York Bans Elephant Shows

On Thursday, Governor Cuomo signed a bill outlawing the use of elephants as entertainment (e.g., circuses and parades) in New York State. Mayor de Blasio signed a similar bill earlier this year.


Graffiti Lawsuit Trial Begins

Over 20 artists sued developer Jerry Wolkoff for whitewashing murals on a building that had become a "mecca" for graffiti artists. The artists claimed that the works at 5Pointz, the name by which the building became known, were protected under the Visual Artists Rights Act, which protects artists' "moral rights" (e.g., attribution, or the right to prevent destruction of the work) independent of copyright or physical ownership. Wolkoff, who allowed graffiti artists to paint his buildings for decades before he whitewashed and then tore down 5Pointz, argued that the work was inherently transient, and the artists always knew he would eventually tear down the building. The jury trial began on Tuesday in Brooklyn.

Mosaic from Caligula's Pleasure Ship Returned to Italy

A 4x4 piece of mosaic flooring from one of the ceremonial ships built for Roman Emperor Caligula to host parties on Lake Nemi served as a coffee table in an antique dealer's Manhattan apartment for 45 years. The Manhattan District Attorney's Office seized the coffee table last month, and on Thursday returned it to the Italian government, having determined that it was taken from an Italian museum before World War II.

Dutch Museum's Director Steps Down Amid Controversy

Beatris Ruf, director of the Stedelijk Museum Amsterdam, resigned after news reports suggested the she may have serious conflicts of interest.

Performance Artist Charged in France

Pyotr Pavlensky, a Russian performance artist who was granted political asylum in France, was arrested and charged with property damage after he apparently (intentionally) started a fire in front of the Banque de France building in Paris.


Gymnast Accuses Team Doctor of Sexual Abuse

Olympic gymnast McKayla Maroney, 21, tweeted allegations that former USA Gymnastics team doctor Larry Nassar abused her sexually for years, starting when she was 13 years old. Nassar was previously convicted of possession of child pornography, and sued by more than 125 women alleging abuse.

Hernandez Family Refiles CTE Lawsuit

The family of former new England Patriots tight end Aaron Henrandez filed a lawsuit in Massachusetts state court against the National Football League (NFL) and helmet maker Ridell. Hernandez, who committed suicide while in prison, had chronic traumatic encephalopathy (CTE), a result of repetitive brain trauma. The Hernandez family original filed suit in federal court, and had named the New England Patriots as a co-defendant.

Sports Official Calls Corruption Claims "Biggest Lie in the World of Sports"

Papa Massata Diack, who worked for years as a consultant for the I.A.A.F. (track and field's governing body), contends that he is innocent of the accusations of corruption that continue to pile up. Diack is accused of, among other things, covering up failed doping tests, helping to buy votes for the hosting of major sporting events, and funneling bribes. Diack claims that he is being persecuted because of his race, and that the allegations constitute "the biggest lie in the world of sports."

NFL Decides not to Crack Down on Kneeling

At a recent meeting of NFL team owners, players, and union leaders, the NFL announced that it will not crack down on players who kneel during the national anthem. Instead, NFL Commissioner Roger Goodell said that the NFL is committed to working with players to address the issues players are protesting.

Europeans Investigating Formula One Corruption

French and British financial corruption investigators are looking into whether the Federation Internationale de l'Autmobile (FIA) had a conflict of interest when it approved the sale of Formula One to American cable conglomerate Liberty Media. The FIA owns a 1% share in Formula One that it cannot sell until Formula One is sold.

Sandusky Denied New Trial

Former Penn State assistant football coach was denied a new jury trial on child abuse charges.

North Carolina Governor Settles Bathroom Law Lawsuit

North Carolina Governor Roy Cooper announced that he reached a settlement with transgender rights advocates who sued the state over laws preventing transgender people from using public restrooms. The proposed consent decree must be approved by the state's legislature before it is certified by a judge.

Brazil Charges Former Trump Hotel Partner

Arthur César de Menezes Soares Filho is charged with being part of a kickback scheme to help Brazil win its bid to host the 2016 Olympic Games. Soares, whom Brazilian prosecutors are trying to extradite from the United States, was a partner in the former Trump Hotel Rio de Janeiro.


Twitter to Toughen Anti-Harassment Rules

Twitter Inc. announced its intentention to impose tougher penalties for sexual harassment, bullying, and other misconduct on the social media platform. Among the new rules are immediate permanent suspension of original posters or sources of non-consensual nudity, which definition is expanded to include "upskirt imagery, creep shots and hidden camera content."

Bill O'Reilly Settled Sexual Harassment Claim for $32 Million

The New York Times reports that Fox News host Bill O'Reilly agreed to pay a network analyst $32 million to settle sexual harassment allegations. One month later, Fox renewed O'Reilly's contract for four years at $25 million per year.

Investigative Journalist Killed by Car Bomb in Malta

Daphne Caruana Galizia, 53, was killed by a car bomb. She was an investigative journalist whose blog posts exposed corruption in the Maltese government, including Malta's prime minister. The Prime minister strongly condemned the killing and, on Saturday, Malta's government offered a reward of 1 million euros for information leading to the conviction of those responsible.

Google Serving Fake-News Ads on Fact-Checking Sites

Google has been placing ads on fact-checking sites, like PolitiFact and Snopes, that use false headlines to lead users to fake versions of websites for publications like Vogue and Us Weekly. These ads are served through Google's automated tools, and there is little the Snopes and PolitiFact can do to restrict the ads that appear on their sites.

Center For Art Law Case Law Updates

The following case selection first appeared in this week's Center for Art Law newsletter:

Apperson v. City of St. Louis, Case No. 17-cv-2461, (E. D. Missouri, Sep. 22, 2017). This fall, MacArthur Justice Center filed a lawsuit alleging that St. Louis officials are improperly arresting, jailing, and prosecuting protesters. The suit claims that the arrests violate First Amendment rights of free speech, the detentions violate the Fourth and Eighth Amendments, and a general due process violation. The suit also brings analogous state-law claims. It seeks monetary damages and an injunction against the continuance of these alleged practices. The ACLU filed a parallel lawsuit alleging police misconduct (using chemical weapons, interfering with video of police activity, and violating due process).

Sotheby's v. Nature Morte LLC and Anatole Shagalov, 655636/2017, (Sup. Ct. N.Y. Cty. 2017, Aug. 31, 2017). Sotheby's filed a complaint in New York State Court seeking to recover $ 6 million dollars from a winning bidder of an artwork at a recent Sotheby's auction. Anatole Shagalov signed a personal guarantee obligating him to an immediate payment for any piece of artwork on which Nature Morte LLC placed the highest bid. Nature Morte placed the winning bid of $ 6 million dollars, but allegedly failed to pay for the artwork. Sotheby's seeks to recover the $6 million dollars plus interest and fees from Nature Morte LLC and Anatole Shagalov, arising out of the breach of the personal guarantee. The Answer was filed on October 11th.

Bouvier v. Adelson, cv 16-3655, (2d Cir. 2017 Aug. 28, 2017) - On August, 28, 2017, a panel for the Second Circuit held that Section 1782 discovery is available for use in a proceeding in a foreign or international tribunal, even when the applicant is not making a claim for damages. The court also held that once an applicant has obtained discovery under Section 1782 for one foreign proceeding, the applicant may use that discovery in other foreign proceedings. The case arose out of the ongoing dispute between Russian Oligarch Dmitry Rybolovlev, and Swiss art dealer Yves Bouvier.

Thome v. The Alexander & Louisa Calder Found'n, 152721/2017, (Sup. Ct. N.Y. Cty. Aug. 22, 2017) - Joel Thome, owner of a theatrical stage set that is allegedly the last artwork by Alexander Calder, filed a new lawsuit against the Calder Foundation, seeing $2 million dollars in damages, based on three causes of action: (1) tortious interference, (2) interference with prospective advantage, (3) product disparagement.

Aboutaam v. Dow Jones & Co., (Supreme Court of the State of New York) On July 17, 2017, Hicham Aboutaam, filed a libel suit against the Wall Street Journal for an article that reported that countries were investigating him for allegedly trafficking in artifacts looted by ISIS.

Moi v. Chihuly Studio, Inc., 17-2-14150-0 SEA, (Sup. Ct. WA, King County, Jun. 17, 2017) While Chihuly's glass sculptures are on display at the New York Botanical Garden, Michael Moi sued his former employer, Chihuly Studio, seeking a declaratory judgment of co-authorship and co-ownership of some of the paintings produced by Dale Chihuly. Other causes of action are accounting of revenue and imposition of constructive trust, as well as injunctive relief under VARA.


Weber v. Haerle, [Switzerland, 2017], Ger., Heidi Weber, long-time friend and collaborator of Le Corbusier, is suing Peter Haerle, Culture Director of Zurich, for defamation. In 1964, Weber assisted Le Corbusier in the co-founding of his lakefront museum in Zurich. The construction permit required that 50 years later, the property must be turned over to the city of Zurich. Just two years past the expiration of the original building permit, the city changed the name of the institution from the Centre Le Corbusier Heidi Weber Museum to Pavillon Le Corbusier. Weber and her son have spoken out on the grave injustice they believe is being perpetuated by the local government. Weber is so enraged that she removed her collection of Le Corbusier artifacts that she had loaned to the city. On July 5th, the Court authorized the case to proceed.

Simon de Pury v. Ruedi Staechlin, High Court, UK, 2017, Eng. Recorded as the most expensive work of art ever sold, Paul Gauguin's "Nafea Faa Ipoipo (When Will You Marry?)" (1892) was actually sold for $210 million, placing it behind de Kooning's "Interchanged" (1955) and Cezanne's "The Card Players" (1890-5) as the third most expensive artwork ever known to be sold. This revelation came to light on June 29th, at the United Kingdom High Court, when Simon de Pury sued to collect a hefty commission--$10 million--he argues is owed to him and his wife Michaela under a "gentleman's agreement." De Pury claims that he and his wife acted as middlemen in negotiating the sale of the painting from childhood friend Ruedi Staechlin to the Emir of Qatar. The de Purys and Staechlin argue conflicting accounts of the nature of Simon and Michaela's involvement in this transaction. Staechlin's attorney alleges that the de Purys engaged in a breach of fiduciary duty by misrepresenting prices and "pestering" Staechlin, which de Pury denies.

T. v. T., v. 6 Ob 145/16s, Austria, 2017, On June 27th, the Regional Court for Civil Law in Vienna found the 2012 contracts establishing the Franz West Private Foundation--initiated by those non-family members with a financial stake in West's sales and signed by West on his deathbed--to be improperly executed and incapable of being upheld. The Foundation alleged that it was the rightful owner of West's assets and royalties, rather than his now-deceased wife and their two children. The Court's argument turned on the finding that the Foundation's paperwork was so sloppily drafted that material elements of the agreement--including a formal acceptance--were absent. In line with the Court's ruling, the remaining unsold artwork will now be given to West's children and their guardian... so long as the Foundation does not appeal the Court's decision.

The Center for Art Law strives to create a coherent community for all those interested in law and the arts. Positioned as a centralized resource for art and cultural heritage law, it serves as a portal to connect artists and students, academics and legal practitioners, collectors and dealers, government officials and others in the field. In addition to the weekly newsletter (, the Center for Art Law subscribers receive updates about art and law-related topics through its popular art law blog ( calendar of events ( The Center for Art Law welcomes inquiries and announcements from firms, universities and student organizations about recent publications, pending cases, upcoming events, current research and job and externship opportunities. To contact the Center for Art Law, visit our website at: or write to

October 16, 2017

Week in Review

By Tiombe Tallie Carter

President Renews Attack on National Football League, and Then Criticizes a Host on ESPN

Players kneeling in protest during the national anthem led President Trump to threaten to eliminate a federal tax law that allows the National Football League (NFL) to avoid paying taxes as a nonprofit organization. The tax law applies only to the NFL central office, since the teams are for-profit and already pay taxes. President Trump also called for firing ESPN SportsCenter host Jemele Hill on Twitter for her criticisms of him. Tax breaks for sports franchises have been controversial, as many businesses have benefited from tax subsidies, including the financing of stadiums with tax-exempt municipal bonds. The White House later backed away from President Trump's comments, stating that he was only making a point, as the federal tax law does not actually apply in this instance.

NBC Nuclear Arsenal Story Prompts a Threat by Trump

On Wednesday, NBC reported on-air and online that President Trump stated during a July meeting that he wanted to increase the national nuclear arsenal by 10 percent. Afterwards, Secretary of State Rex Tillerson called the president a "moron." In retaliation, on Twitter, President Trump threatened NBC's federal license to broadcast television. Many immediately reacted, concerned "that he was undermining the First Amendment." Senator Edward J. Markey from Massachusetts wrote to Federal Communications Commission chairman Ajit Pai to protect the First Amendment. The NBC report did not identify the three officials in the meeting. Defense Secretary Jim Mattis issued a written statement calling the report "absolutely false." President Trump's attacks on the NBC suggested an unfamiliarity with how broadcast licensing works. Television networks like NBC, ABC, and CBS do not license spectrum; individual television stations do.

Below, for your browsing convenience, the categories are divided into Entertainment, Arts, Sports, and Media:


The Fall of Harvey Weinstein

Film producer Harvey Weinstein of Miramax and the Weinstein Company was accused by actresses and models of sexual assault stemming back to the 1980s. Big-name actresses, such as Gwyneth Paltrow, Angelina Jolie, Rosanna Arquette, Dawn Dunning, Judith Godreche, and Katherine Kendall reported to the New York Times and the New Yorker Magazine that Weinstein had a history of sexual harassment, including sexual assault entailing forced oral and vaginal sex. The fallout from the exposés has been deep and swift. The Weinstein Company terminated him almost immediately, even though he made a failed last-ditch attempt to dissuade its board from voting to fire him. He is currently under criminal investigation in several jurisdictions, spanning from New York to London. The London Metropolitan Police Service confirmed that it is investigating allegations against the disgraced filmmaker that date back to the 1980s. New York police are investigating claims by actress Lucia Evans for a 2004 sexual assault on her in his then Miramax office. Following due diligence, the New York police are researching other complaints as well. There is one as recent as 2015, when Italian model Ambra Battilana Gutierrez claimed that he groped her in his Tribeca office. According to Manhattan district attorney, Cyrus Vance Jr., the sex crime prosecutors determined that that case was not provable. It is unclear to what degree the Weinstein Company was aware of the sexual allegations. His brother and co-founder Bob Weinstein, along with the company president David Glasser, held a video conference call with employees. They stated that they were shocked and unaware of the allegations and any settlement payments. Hervey Weinstein, during his final hours of employment, emailed the board, and stated that they were aware of the settlement payments to several women. One board member, Lance Maerov, admitted his knowledge of the payoffs, but thought they were for consensual affairs. Several members left the board since the allegations were made public, but said that they would cooperate with the criminal investigation.

As a result of these allegations, the Hatchett Book Group announced that it is shuttering Weinstein Books, a Weinstein Company publishing imprint. Weinstein was also condemned for his actions by former President Barack Obama and former Secretary of State Hillary Clinton. Companies continue to distance themselves from his spotlight. The Walt Disney Company, which once owned Miramax Studios and employed Weinstein before he left to found the Weinstein Company with his brother Bob Weinstein, stated that it was unaware of the complaints and that the Weinstein brothers operated autonomously. His wife, Georgina Chapman, stated publicly her intention to divorce him, and educational institutions and entertainment organizations are denouncing him as well. The University of Southern California has gone as far as to reject Weinstein's $5 million pledge to its School of Cinematic Arts. Finally, the Motion Picture Academy expelled him over the weekend.®ion=Marginalia&pgtype=article®ion=Footer&module=MoreInSection&version=WhatsNext&contentID=WhatsNext&pgtype=article

Rose McGowan Calls Ben Affleck a Liar

Actress Rose McGowan said that she told Ben Affleck that Harvey Weinstein had behaved inappropriately with her. Affleck's response, "GODDAMNIT! I TOLD HIM TO STOP DOING THAT," suggested that he had apparently chastised Weinstein about his behavior in the past. However, when questioned, Affleck gave no indication of being aware of the incidents. McGowan took to Twitter: "You lie." Affleck did not respond.

Nelly Arrested on Rape Accusation

Cornell Haynes Jr., better known as "Nelly," was arrested on October 7th for sexual assault. A young woman accused the St. Louis-born rapper of rape while on his tour bus after a performance at the White River Amphitheater in Seattle. He was released from custody the same day and has not been charged. The investigation is ongoing. The woman now wants to recant her story.®ion=stream&module=stream_unit&version=latest&contentPlacement=2&pgtype=sectionfront


Couple Drops Lawsuit over Disputed Antiquity

Lynda and William Beierwaltes, a Colorado couple with a penchant for antiquities, decided to drop their federal lawsuit to stop the repatriation of a 2,300-year-old sculpture to Lebanon. The Beierwaltes purchased the marble sculpture of a bull's head for more than $1 million in 1996. The Republic of Lebanon reported the artifact as being looted during its civil war. It was discovered by a curator when it was on loan to the Metropolitan Museum of Art from Michael H. Steinhardt, a New York collector, who had purchased the work from the Beierwalteses in 2015. He has since asked the couple to take back the work and return his money. The Beierwalteses sued the Manhattan district attorney and the Lebanese government, claiming that they had a clear title. However, they recently released a statement of "incontrovertible evidence that the bull's head had in fact been stolen from Lebanon." There are no criminal charges against the Beierwalteses. However, investigations continue, as there is a second antiquity, "an archaic marble torso of a calf bearer," that was also stolen from Lebanon. Interestingly, the second work was also sold by the same gentleman who sold the Beierwalteses the first piece, and the Beierwalteses later sold it also to Steinhardt.

Publishing's Unfair Gray Market

When an Amazon customer hits the main buy button, he or she expects to get a brand-new book. Previously reserved for Amazon's inventory, that spot has now changed. Amazon now allows third-party sellers to be featured above the primary book purchase button for new books. Therefore, a customer now may not receive a "new" book, as third-party sellers often purchase books in bulk that were review copies sent freely to media outlets or overstocks returned from brick and mortar bookstores. The problem, other than being unethical, is that the author often receives nothing for these types of sales. The Independent Book Publishers Association is investigating this gray market on Amazon. Publishers receive some revenue from overstocks sales. However, authors receive little, if any, income. Amazon clarified its definition of "new," stating that remainders and overstocks do not qualify. The Authors Guild asked publishers to keep better records, but the cost to police this gray market is prohibitive. Amazon, through a spokesperson, said: "We move quickly to address any violations." Perhaps it would be easier if it simply returned to disallowing third-party sellers access to the main buy button.

U.S. Will Withdraw from Cultural Agency, Citing "Anti-Israel" Bias

The Trump administration has announced that it is withdrawing from the United Nations Educational, Scientific, and Cultural Organization (UNESCO). It cited UNESCO's "anti-Israel" bias as its reason to withdraw, as UNESCO continues to recognize Palestine as a full member since 2011. In addition, the U.S. is $550 million in arrears to the organization. The withdrawal becomes effective at the end of 2018, at which point the U.S. will become a nonmember observer allowed to continue to provide expertise and perspective. American cultural organizations criticize the decision. Metropolitan Museum of Art chief executive Daniel H. Weiss said that "UNESCO may be imperfect," but it has been an important leader in preserving vital cultural heritage worldwide. UNESCO criticized Israel in 2015 for "aggressions and illegal measures against freedoms of worship" in Jerusalem. This summer, it declared the West Bank's ancient Hebron as an endangered Palestinian Heritage site.

The Guggenheim Censors Itself

"Art and China after 1989", a new show at the Guggenheim Museum, is causing quite a stir. Animal rights activists protested several works that entailed pigs mating, pit bulls on treadmills, and insects trapped with reptiles. A New York Times preview of the show stated that "some creatures will be devoured; others may die of fatigue." The museum received threats of violence. Richard Armstrong, the museum's director, removed the animal works in response to the protest, reasoning that he had to consider the safety of the museum's staff, visitors, and participating artists.


NFL Unity on Anthem Is Vanishing

Two weeks ago, the NFL was locked in unity, literally, many arm in arm or kneeling in protest mostly against President Trump's calls for firing players who do not stand for the national anthem. That united front is crumbling as the President re-frames the focus of the protest away from police brutality and social injustice to a statement on the flag and supporting the military. Dallas Cowboys owner Jerry Jones threatened to bench any player who does not stand for the anthem. Miami Dolphins owner Stephen M. Ross, who has been empathetic with his players, is now telling them that by not standing they are hurting their cause. For the owners, it comes down to money, according to Frank Zaccanelli, a former part owner of the Dallas Mavericks. "If any business took a 10-12% business hit, red lights would be going off." The players union is standing with the players, by issuing a statement defending its members' right to free expression. Current players voiced their opinions, ranging from continuing to kneel to staying in the locker room until after the anthem. Some former players are not aware of the issues. Hall of Famer Mike Ditka did not quite get all the fuss, stating, "All of a sudden, it's become a big deal now, about oppression." The NFL's rule that "players must be on the sideline for the anthem and should stand while it is being played" has not been enforced. That may change after the owners meet to discuss what actions to take.

NFL Players Who Protest Have an Ally in Labor Law

While players, owners, cheerleaders, and fans from the national and international shores continue to kneel, lock arms, and wait in locker rooms during the national anthem, the question remains: "How far can workers go in banding together to address problems related to their employment?" Federal labor law protects any "concerted activities" that "employees engage in to support one another in the workplace." Such activity has been broadly defined by the National Labor Relations Board (NLRB) and courts, where rulings have allowed a myriad of activities bearing on one's work life. "To be protected under federal labor law, an employee's action must be conducted in concert with co-workers, it must address an issue of relevance to their job, and it must be carried out using appropriate means." Referring to a 1978 Supreme Court case, where it was determined that "workers have a right to engage in political advocacy as long as the political theme relates to their job," many experts believe that the recent protests, at least some of them, meet the federal law's conditions. With the Trump administration's assault on workers' rights--as noted in its directed reversal of the government's position in a recent Supreme Court worker rights case, National Labor Relations Board v. Murphy Oil USA, No. 16-307, (Arg. 10.02.2017), and a Republican majority on the NLRB board, a narrowing of the interpretation of what constitutes "protected concerted activity" is expected.

NFL Player Calls for Unity on a Strategy for Protests

Russell Okung, lineman with the Los Angeles Chargers, urged all 1,700 NFL players to take a unified stand against NFL owners' pressure to stand during the national anthem. The anthem demonstrations were intended to draw attention to racial inequality and police shootings of African-Americans. President Trump blurred that initial message by tweeting that "players who kneel or sit during the national anthem are disrespecting the flag and the military" and chastising the team owners for not disciplining the players for protesting. In an interview, Okung said that "he wrote the letter as a way to move players' focus away from the president's agenda and back toward their own goals of addressing inequity." He posted his letter on The Players' Tribune in an attempt to reach all players across the players' association who may want to do more as a group, but did not have a vehicle to do so, as "the system is designed to keep us divided and stifle our attempts to collaborate." Team owners are meeting next week to discuss the anthem demonstrations. Some owners have threatened to bench players who do not stand. Okung invited players to contact him on Twitter to facilitate a conversation on "important decisions" made without players' input.

NCAA Declines to Punish North Carolina for Academic Fraud

The fact that the University of North Carolina is guilty of running an academic fraud scheme is undisputed. However, the NCAA will not issue penalties because technically no rules were broken, according to its recent ruling. It is uncanny that, for almost two decades, North Carolina had offered approximately 200 "paper" classes that were "laxly administered and graded" and geared towards student athletes, particularly in the football and basketball programs. The classes were predominantly offered through the African and Afro-American Studies Department, administered by a staff member, barely required attendance, and at best required one paper. The university was put on probation temporarily, and its accreditation was in jeopardy. The NCAA's Committee on Infractions determined that because non-athlete students had access to the "shadow curriculum," it "could not conclude that the University of North Carolina violated NCAA academic rules." The fact that the University of North Carolina is satisfied with this standard of academic curriculum quality actually protected it from punishment. The panel concluded that it could not establish that the courses were "solely created, offered and maintained as an orchestrated effort to benefit student-athletes." If the NCAA's membership, which consists of more than 1,000 colleges and universities, wants its athletes to be adequately educated, regardless of the educational standard at an individual school, then it will have to establish rules to that effect.

In Scandal's Aftermath, NCAA Plans a Commission to Reform Men's Basketball

On Wednesday, the NCAA announced that it was forming a college basketball commission to make substantial changes to the way it operates. This decision is in response to the federal charges against 10 men for a scheme among the sneaker giant Adidas, assistant coaches, agents, and money managers to funnel money to players and coaches. Former Secretary of State Condoleezza Rice will chair the commission, and it will include members such as Ohio State's athletic director, Gene Smith; president of the Association of American Universities, Mary Sue Coleman; and Jeremy Foley, Florida's former athletic director. The commission will examine the NCAA's fundamental regulatory arrangements, the rules regarding interrelated institutions such as apparel companies, nonscholastic basketball programs, and agents, and the NCAA's relationship with the National Basketball Association.

Elliott's Suspension Is Reinstated by Court

The NFL will be able to impose a suspension on Ezekiel Elliott, the Dallas Cowboys running back accused of domestic violence, according to a recent ruling by a federal district court. Elliott was initially suspended for six games. The NFL Players Association defended Elliott in district court, and that court issued an injunction blocking the suspension. The NFL appealed to the United States Court of Appeals for the Fifth Circuit, where it found on Thursday that the lawsuit "was 'premature' because the NFL and the players' union had not exhausted all available procedures in the league's collective bargaining agreement."

PSG Chairman Faces Claims of Bribing FIFA

Nasser al-Khelaifi, chairman of Paris St. Germain soccer team and chief executive of beIN Media Group, was accused by the Swiss attorney general of bribing Jerome Valcke, former FIFA general secretary for World Cup soccer broadcasting contracts. Valcke is currently serving a 10-year ban from soccer. In a written statement, the Swiss authorities said that it suspected Valcke of accepting "undue advantages" from al-Khelaifi regarding the award of media rights for certain countries at FIFA World Cups 2026 and 2030. beIN, the Doha-based television network that has been on a spending spree for media rights, refutes all accusations. The Swiss investigation stems from a U.S. indictment made in May 2015, charging a two-decade-long corruption scheme with the largest power brokers in the world of soccer. With 25 soccer-related investigations still open, al-Khelaifi is one of the first Qatari to be formally charged.

Aaron Hernandez's Family Drops CTE Suit against NFL, for Now

Aaron Hernandez, former New England Patriots tight end, committed suicide while in jail this past April. At the time, he was serving a life sentence for the murder of his friend Odin Lloyd. That conviction was vacated because his appeals had not been exhausted before his death. In September, his family sued the NFL for not adequately protecting him from concussions. It was determined from Hernandez's autopsy that he had an "advanced form of chronic traumatic encephalopathy, a degenerative brain disease linked to repeated head hits." The family dropped the suit against the NFL so that it can refile in state court, where more claims can be filed, than in federal court. There will still be significant hurdles when the family refiles in Suffolk County Supreme Court: there is a high bar to overcome for athletes who played football in childhood and college, in addition to overcoming the argument that the proper forum is by the collective bargaining agreement with an arbitrator, and not in court with a judge.

Game Forfeited over Racist Posts

South Dakota high school Sturgis Brown canceled its annual homecoming celebrations due to photos shown on social media of students destroying a car with "Go back to the Rez" painted on the side. Sturgis Brown was due to play Pine Ridge School from the Pine Ridge Indian Reservation at the homecoming festivities. The school board voted unanimously to cancel all homecoming activities, which included the football game, dance, and parade, to avoid any potential danger to the students.

Hall of Famer Says Warn Parents of Risks

NFL Hall of Famer Harry Carson testified at a Congressional hearing that parents should be warned when signing up their children to play football, as the sport can cause long-term neurological damage. Carson is a former linebacker who was diagnosed with post-concussion syndrome in 1990. The 13-year veteran of the New York Giants will not allow his 8-year old grandson to play the sport that yielded him nine Pro Bowl wins and a Super Bowl ring. He now spends his time devoted to raising awareness of the risks associated with playing the sport.


ESPN Host Barred for Urging Boycott to Rebuke Jerry Jones

ESPN enforces its social media guidelines with the suspension of Jemele Hill, its SportsCenter host, for a second Twitter outburst. In response to Dallas Cowboys owner Jerry Jones's statement that he would bench all players who "disrespect the flag," Hill tweeted, "If you feel strongly about JJ's statement, boycott his advertisers." She called President Trump a white supremacist last month. Although she later clarified that she was not calling for a boycott of the NFL, ESPN implemented a two-week suspension. Jones's threat that the Cowboys will not play if they disrespect the flag was met with opposition from the NFL Players Association, which "issued a statement that defended its members' right to free expression."

Google Inquiry Connects Election Ads to Russians

Google's internal investigation revealed how Russia used social networks and technology services to influence the 2016 presidential election. The social media giant discovered thousands of dollars' worth of ads purchased by Russian agents. The ads spanned the political spectrum, from Donald Trump building a golf course in Scotland, to asking whether President Obama needed to resign. Microsoft is also investigating whether Russia infiltrated its Bing search engine. Facebook already discovered that Russia had placed over 3,000 ads during the election campaign. Representatives from Google have been called in to testify before the Senate Intelligence Committee hearings on November 1st.

Lawmakers Will Release Facebook Ads from Russia

The thousands of Facebook ads used by Russia to influence the 2016 presidential election will be released to the public according to the House Intelligence Committee. Hearings will be held on November 1st to investigate the role of social media in Russia's election tampering. Facebook's chief operating officer, Sheryl Sandberg, has been meeting with federal officials in a public relations effort to diffuse the political pressure surrounding the media giant. She has agreed to provide additional fake news and inflammatory content from the social media platform. According to Representative Adam B. Schiff of California, the ads will have to be scrubbed of personally identifiable information before being released to the public.

Russians Spun Americans' Rage on Facebook into a Weapon

The New York Times investigated hundreds of posts written by Americans that were re-posted on Russian social media pages. The posts took "descriptions and videos of police beatings from genuine YouTube and Facebook accounts," and re-posted them on Russian pages entitled "Being Patriotic," "Blacktivist," and others resembling American angst. They used the social media platform's system for engagement to feed outrage. Jonathan Albright from Columbia University's Tow Center for Digital Journalism calls it "cultural hacking." The Being Patriotic page added the statement: "the national can't trust the federal government. What a disgrace!" to a statement copied from the American site InfoWars that said, "the federal government had taken property from private land owners at pennies on the dollar." According to Graphika, a commercial analytics company, the Russians used platforms from white nationalists to Bernie Sanders supporters to manipulate them. Unlike "astroturfing," a public relations strategy that constructs fake grassroots support behind an idea, the Russians threw seeds and fertilizer onto social media to cultivate a political movement.

Turkish Court Convicts American Reporter in Absentia

Journalist Ayla Albayrak, a dual citizen of Turkey and Finland, was convicted of terrorism by Turkey and sentenced to two years and one month in prison. Ranked by the Committee to Protect Journalists as the highest jailer of journalists, Turkey has implemented a crackdown on media news members. Albayrak was charged with violating Turkey's Article 7/2 Antiterror Law for her 2015 Wall Street Journal article entitled, "Urban Welfare Escalates in Turkey's Kurdish-Majority Southeast," which described clashes between Turkish security forces and Kurdish separatists. Wall Street Journal executives Gerard Baker and William Lewis condemn the ruling. The newspaper will appeal.

Blind Man's Lawsuits Seek Access to College Websites

Emanuel Delacruz, who is blind, filed several lawsuits against area colleges, charging them with violation of the Americans With Disabilities Act. The lawsuits were filed in federal court in Manhattan against Fordham University, Manhattan College, Long Island University, Iona College, and Hofstra University, because their websites are inaccessible to Delacruz. Attorneys are arguing that the federal law requiring public spaces to be accessible to those with disabilities also applies to websites. Over 750 lawsuits have been filed since 2015, mostly against retailers and restaurants. Colleges and universities have only recently faced lawsuits. In 2015, MIT and Harvard were sued by advocates for the deaf, and the Department of Justice's civil rights division found that the University of California, Berkeley, violated the disability law. Failing to caption online lectures and not providing accommodations for video lectures and podcasts are argued to be noncompliance. The 1990's Americans With Disabilities Act does not include the internet, so it is unclear whether the lawsuits will prevail. The Justice Department has issued guidelines, but considering that "web regulations" have been placed on the federal government's "inactive" agenda items, it is unlikely that formal regulations will be adopted.

There is no nationwide consensus of enforcement. A Californian judge earlier this year dismissed a suit by a blind man against Domino's Pizza, "because the chain offered an option to order by telephone." A Florida judge ruled that Winn-Dixie "had to offer the same accommodations on its website as it did in stores." Then in July, a Brooklyn judge ruled that "Blick Art Material's website had to be readily available to a blind man." Tom Stebbins, executive director of the Lawsuit Reform Alliance of New York, said the rulings result in a legal gray area for "either significant civil rights advances or exploitation by lawyers looking to make a quick buck through settlements." There have been cases where identical lawsuits have been filed against several businesses or colleges. Sometimes, the unintended consequences can be dire. The Berkeley suit resulted in the university taking down over 20,000 video and audio files.

Amazon Suspends Executive Accused of Sexual Harassment

Sexual harassment allegations continue to fly in the entertainment and media industries. Roy Price, head of Amazon Studios, was suspended resulting from accusations that he made unwanted sexual advances towards Isa Dick Hackett. Hackett, executive producer of "The Man in the High Castle," said in a Hollywood Reporter article that Price propositioned her in July 2015 after a dinner at San Diego Comic-Con. Reportedly, he made use of vulgar genitalia terms. Her claims were first made public in an article in The Information, a tech news website. Hackett told the Hollywood Reporter that she had found inspiration to go public after the recent articles in the New York Times and the New Yorker Magazine regarding the allegations against Harvey Weinstein. "I feel inspired by the other women who have been far braver than I am, who have come forward," she said.

Investor Presses for Change in 21st Century Fox Board

CtW Investment Group, an organization that "advises several union pension funds invested in Rupert Murdoch's 21st Century Fox," called for an overhaul of the 21st Century Fox board and a comprehensive review of its workplace culture. In a letter from CtW's executive director, Dieter Waizenegger, to Viet D. Dinh, chairman of 21st Century's nominating and corporate governance committee, the organization accuses the directors of failing to ensure that the proper corporate controls were in place when it was aware of the settlements, and "refused to investigate and mitigate the risk . . . and facilitated a tone at the top that permits unethical behavior by high performers." 21st Century Fox stated that it will "respond accordingly," as it takes CtW's communications seriously. Although 21st Century Fox is currently under investigation by the U.S. attorney's office, CtW said it does not need to wait for the results of that investigation. It has called for the resignation of Roderick Eddington, the company's lead director who is also chairman of the audit committee, for failing in his "risk oversight responsibilities." In addition, CtW called for adding directors with human resources experience, increasing the number of women directors, and creating a new committee of independent directors to focus on "organizational culture, workplace safety and health, work force diversity and pay equality, and employment engagement and development." This urging for corporate governance reform should be of no surprise to 21st Century Fox, as shareholders called for similar changes six years ago after its phone-hacking scandal. 21st Century Fox's dual-class share structure continues to present a problem to implement reform. The Murdoch family controls 40 percent of the class of stock with voting rights, compared to other owners with a second class of stock with no voting rights. Even if more independent directors are added to the board, it is unlikely that they will have voting privileges. There is a proposal to the shareholders that would eliminate the dual-class share structure. The 21st Century Fox board is opposed to changing the share structure.