Category: News Feeds

The major sports law-related measure signed into law by Florida Governor Ron DeSantis in 2020 was a bill providing college athletes in the state with the right to commercially exploit their publicity rights. That law goes into effect as of July 1, 2021. Will there be a big sports law issue for Florida to consider in 2021?

I believe that the time is ripe for the Florida legislature, when it reconvenes, to finally pay serious attention to the promise of sports betting within its borders. As of now, 22 states and the District of Columbia allow individuals to place wagers on sporting contests and, based on 2020 election results, it seems as though Maryland, Nebraska, South Dakota, as well as most parishes in Louisiana, are set to be the next pack to join in on the benefits of sports betting, which include an increase in tax dollars for those jurisdictions that have made it legal to place such wagers.

What has stood in the way of this type of change in Florida? No stranger bedfellows than the Seminole Tribe of Florida and Disney. At least that is what some would argue.

A Political Action Committee named Voters In Charge was very active leading up to the 2018 election. This PAC raised just over $46 million from 2015 through 2018, when it seemingly stopped operations based on an accomplished goal. The two largest donors were the Seminole Tribe of Florida ($24.65 million) and Disney Worldwide Services Inc. ($20.56 million), with a corporation named No Casinos Inc. behind them at $910,000 in contributions. The next largest donor gave only $10,000.

A partial underlying motive seems to have been to install a major roadblock to the State of Florida legalizing sports gambling. This was accomplished by lobbying the state to pass a constitutional amendment (Amendment 3). The amendment was titled, “Voter Approval of Casino Gambling Initiative,” which was likely drafted to be purposefully misleading to voters who often do not look past the title of an amendment. The intention was to make it so that only citizens (not the legislature prior to voter approval) could decide whether to authorize casino gambling in Florida. The Voters in Charge PAC led the campaign in support of Amendment 3, which received enough votes to pass.

Since 2018, many have wondered whether casino gambling, as used in the amendment, should extend to include sports betting, which would thus make it more difficult for sports betting to become legalized in Florida since it would then first need to go to a vote by citizens’ initiative. The definition of casino gambling did not expressly include sports wagering. Did the Seminole Tribe of Florida and Disney thus inadvertently keep alive a much cleaner path to legalization for sports betting in the state? I believe that the answer is a resounding yes, and my colleague Daniel Wallach has provided eight reasons why he agrees.

As such, there is nothing to prevent an elected individual or a group of legislators from deciding that it is due time to add Florida to the list of states that have wisely legalized sports betting within their borders. Florida Senator Wilton Simpson previously proposed a sports betting option that would allow the Seminole Tribe of Florida to serve as the host of online sports betting because he believed it would sidestep the aforementioned Amendment 3. However, that seems unnecessary given the fact that Amendment 3 should not extend to control efforts related to sports wagering.

There also existed a bill (SB 968) sponsored by Florida Senator Jeff Brandes, which was filed in 2019, introduced on January 14, 2020, in the Senate, and died on March 14, 2020, in the Innovation, Industry, and Technology Committee. The bill sought to create a new Chapter 547 in the Florida statutes for sports wagering and place power in the hands of the Department of the Lottery to administer the chapter as well as regulate the industry in the state.

It is due time for Florida to join the likes of Nevada, New Jersey, Pennsylvania, Illinois, Michigan, and Colorado in legalizing sports betting. The state proved that it could be a leader by giving college athletes deserved rights related to their names, images, and likenesses. The next sports law issue it should tackle is sports wagering.

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Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.

In November 2020, masks and social distancing are part of our collective reality for now. As a result, air travel is no longer feasible (or desirable) for most of us. And you know what that means: in-person legal conferences are out of the question right and won’t be happening for the foreseeable future.

As a result, virtual legal conferences are all we’ve got for now, for better or for worse. That being said, they’re not a particularly great option and leave a lot to be desired, as I explained in this Above the Law post from June:

Unfortunately, most “virtual” conference platforms fail to incorporate many of the very elements that make conferences the most enjoyable. Sure, virtual CLE sessions and vendor “booths” allow attendees to peruse marketing materials and to chat via text messages with vendors, but even in those respects they fall flat. The feeling of true interaction and engagement is limited and the experience often feels very one dimensional, and — let’s be honest — boring.

In that post I advocated for a legal conference with avatars. I strongly believed then, and continue to believe now, that a conference with avatars is the only way to come a bit closer to replicating the face-to-face networking that makes traditional in-person conferences so valuable — and fun.

Thus far, no conference planners have taken my suggestion to heart and held a conference with avatars. However, last week I had the opportunity to attend two virtual legal-tech conferences (via complimentary passes) that had very little in common other than the word “connect” in their name: Alt Legal Connect 2020 and Intapp Connect20.

Intapp’s online conference was the epitome of a traditional technology company conference for its users, and most sessions were focused on ways that attendees could use Intapp’s suite of software tools to grow and improve their businesses. There were three different tracks that provided a wealth of information, one of which was devoted entirely to legal professionals. Sessions primarily consisted of: 1) how-tos for their different product lines, and 2) panels of current customers who explained how Intapp’s software forwarded their business goals.

In comparison, Alt Legal’s inaugural conference was designed to appeal to current and prospective customers, namely intellectual property and trademark attorneys. This conference covered a wide range of topics of interest to its target audience, including substantive IP and trademark updates, legal marketing tips, legal technology advice (I was honored to be a speaker at one of these sessions), and law firm management and business strategies. Alt Legal also offered unique live events such as Mexican and Italian cooking classes and virtual Taboo and Charades games to help break up the monotony of back-to-back Zoom sessions and insert a bit of levity into the conference.

Both conference platforms included opportunities for online networking with attendees and speakers. The conferences included chat capabilities that allowed attendees to participate in what were often lively discussions about the topic being addressed by the speaker. There were also virtual vendor booths that participants could visit, and engage with company representatives if they were so inclined.

In other words, in both cases, the conference planners did the best they could under the circumstances and, despite the limitations inherent in an online conference environment, put on events that presumably achieved their goals and provided value to attendees. Like every other company that scheduled conferences in the latter half of 2020, they made the best out of an unfortunate situation.

Even so, and despite the planners’ best efforts, these online events, like many others that occurred before them, were missing the key element that makes conferences enjoyable and memorable: in-person interaction and camaraderie.  Through no fault of the people who planned these online conferences (and the ones that preceded them), they were simply back-to-back online meetings at a time when we’re all suffering from extreme Zoom fatigue and are craving genuine social engagement.

That’s why I continue to believe that one way to solve this problem is by holding an online legal conference with avatars. I’m convinced that this format will offer a way to insert a form of gamification into events, thus adding an additional element of fun and making them just a bit more enjoyable.

No doubt in-person conferences are the ideal format, but I think we can all agree that they won’t be occurring anytime soon. Meanwhile, virtual conferences using videoconferencing alone are falling flat. Since that’s the case, and we’re stuck with online interactions for now, why not experiment a bit to see if providing a new and unique way to interact and engage might be the stop-gap solution?

In short, I think gamification is the solution to virtual conferencing fatigue, and using a conference platform that incorporates avatars is a great way to go about it. Gamification has been proven to increase user engagement and interaction, which is exactly what we need to improve the virtual conference experience. Sound interesting? If so, and you’re on board, here are three of the best-known contenders for consideration: Virtway, Teeoh, and Whova.

I may be a lone voice in the darkness, yelling into the ether from my lonely virtual mountaintop, but I’m confident that someday soon, someone, somewhere will hear me and see the light. And, maybe, just maybe, that day is today. Are there any takers out there? Anyone? Bueller?

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Nicole Black is a Rochester, New York attorney and Director of Business and Community Relations at MyCase, web-based law practice management software. She’s been blogging since 2005, has written a weekly column for the Daily Record since 2007, is the author of Cloud Computing for Lawyers, co-authors Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York. She’s easily distracted by the potential of bright and shiny tech gadgets, along with good food and wine. You can follow her on Twitter at @nikiblack and she can be reached at niki.black@mycase.com.

Look, maybe the polls in these races were all irrecoverably broken. That’s certainly possible as the presidential numbers seem to have been off by far more than anyone was expecting. But there actually were signs that the key Senate races were tightening in recent days, which coupled with the overarching error, may explain what we’re seeing.

What caused that movement down the stretch? Apparently the rise in chatter over a Supreme Court expansion effort that was branded — cynically or not — as “court packing.”

Here’s Iowa Senator Joni Ernst who doesn’t even know how her own state’s economy works working out her closing narrative.

In North Carolina, Senator Thom Tillis — who might still lose — currently holds onto a lead that no one projected him to have at this point. In the last week and a half, here’s what he was crafting as the centerpiece of his campaign.

Susan Collins, the most vulnerable GOP Senator not named “McSally” this cycle, turned to generating headlines like this:

And so on.

The irony, of course, is that none of these challengers expressed actual support for court expansion, and, at least in the case of Maine, explicitly tried to distance the campaigns from the proposal. But that didn’t really matter. A number of prominent legal commentators had churned out articles and turned social media into court expansion cheering sections which elevated the proposal to a seat as a prime election talking point.

Joe Biden even got asked about it point blank in a town hall. He ultimately punted and proposed a committee to defer conversation and bury the enthusiasm out there under a mound of bureaucracy, but the damage was already done.

And it appears to have worked. Without any input from the candidates themselves, Democrats were tagged as court packers and the incumbents leaned on that hard in the closing days. People rightfully scorn folks like Thomas Friedman for promoting stupidity as “challenging conventional wisdom,” but when he advocated voting for Biden and Republican Senators he gave voice to this strategy — “we know you don’t like Trump, but if you don’t want court packing, at least split your ticket and vote for us.”

The challengers certainly bear some of the blame. Denials don’t escape unfair labels. The other side will just say your denials can’t be trusted. The only right answer is to change the narrative with a whole new proposal. Respond with “no, I don’t support that but I do support this other popular idea.” That could have gotten them somewhere other than the unemployment line.

And in this case there was just such a popular idea sitting right there on the floor of the House the whole time! The term limits proposal wouldn’t reverse the conservative majority on the Court tomorrow, but it would improve the nomination process by nerfing the stakes of each individual pick, expanding the pool of available jurists by not requiring nominees that will live for decades to come, and ending the idea that the American experiment should ever rely on people who are unelected and hold office for life. Expansion can be a last resort negotiating tactic, but never the starting position of a party that styles itself as defenders of good governance.

Just like in 2015 when liberals waved off the possibility of reforming the judiciary because they thought they were about to win, liberals this time around saw the chance to take their own turn taking a baseball bat to norms of good governance like McConnell has and hyped themselves up for a broadly unpopular maximalist position that ended up as an Albatross around their Senate hopes. Maybe next time they can try something other than oscillating between doing absolutely nothing and trying to out Republican the Republicans and just advocate for the overwhelmingly popular term limits proposal. Because doing the right thing instead of what would be in the party’s immediate best interests could well have saved the Senate for them.

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

The revolution that Paul Tudor Jones has been preparing for has, it seems, been put on hold indefinitely. Still, Leon Cooperman hedged his bets—literally, as far as he’s concerned.

Billionaire hedge-fund manager Leon Cooperman revealed that he voted for Joe Biden for president even though he expected President Trump to make him richer….

“I voted my values and not my pocketbook,” the Omega Advisors founder told CNBC late Tuesday. “I’ll be richer tomorrow if Trump wins. I’ll probably be poorer tomorrow if Biden wins. But I voted my values.”

* The Attorney General of New Jersey needed to reiterate that it was still illegal to use pot in the state after a legalization ballot initiative passed. Harold and Kumar was filmed in NJ, the Garden State has a long history with cannabis… [NJ Advance Media]

* A Michigan woman who allegedly pretended to be a government lawyer to defraud immigrants has been sentenced to prison. [Michigan Live]

* A former convict turned lawyer has become the first formerly incarcerated person to win elected office in Washington State. [ALM]

* A Minnesota lawyer has been sentenced to prison for allegedly colluding with a chiropractor to bilk insurance companies with false claims. [Twin Cities Pioneer Press]

* Michigan’s Secretary of State said an election lawsuit filed by the Trump Campaign is “frivolous.” Other Trump lawsuits have been similarly labeled in the past… [CBS News]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

How much money has Perkins Coie, the go-to election litigation firm for Democrats, reportedly made from various Democratic organizations since 2019?

Hint: Led by election law expert Marc Elias, who has been very busy the last few weeks, the firm’s prominence in this practice area has been very profitable.

See the answer on the next page.

The current record-holder for world’s largest IPO had a pretty bad day. The company aiming for its crown had a worse one. Much, much worse.

The Shanghai Stock Exchange suspended the initial public offering of Ant Group, the internet finance spinoff of the Chinese e-commerce giant Alibaba, an extraordinary turn of events for what had been set to be the largest share sale in history.

A meeting called by four financial regulators on Monday changed all that. The People’s Bank of China, the China Banking and Insurance Regulatory Commission, the China Securities Regulatory Commission and the State Administration of Foreign Exchange said late in the day that they had summoned Mr. Ma, Ant’s executive chairman, Eric Jing, and its Chief Executive Simon Hu to a meeting, without providing details.

Ant said Monday that “views regarding the health and stability of the financial sector were exchanged” at the meeting, and that it would embrace regulation and service China’s economy and its citizens.

Professional Development teams play an essential role across all types of firms in keeping lawyers informed both professionally and personally. This month, PLI is recognizing its inaugural PD Appreciation Month, and for this year’s theme, it’s putting the focus on wellness.

“Wellness” is everywhere in the legal community these days — and with good reason. With the uncertainties of the job market, remote work, and schooling, and everyday worry over the pandemic, lawyers and legal professionals may be more stressed than ever. During November, PLI is debuting its Empowering Professional Development 2020: Well-Being in the Legal Industry series. For the first three Thursdays of November, esteemed leaders in professional development and well-being will address these important topics for law school students, attorneys, and professional staff. 

Kirsten Talmage, PLI’s Senior Director for Product Strategy & Development, discussed the program and importance of the PD community. 

Why have a PD Appreciation Month?

PLI has always valued the professional development community; we enjoy a close working relationship with the individuals involved and their consistent feedback has led to the development of new programs, products and other offerings. Over the last three years, we’ve launched the PD Center, which houses content created exclusively for the community, including our PD Insider interview series and PD Interactive webinars, as well as resources on creating effective training and instructional design. We thought it was important to continue to build on the PD Center by offering a dedicated, yearly program to this community and to recognize their tremendous efforts in directing attorney training. 

How did PLI select well-being as the focus of the inaugural program?

We have increased our resources and programs about attorney wellness over the last five years. We’ve also noted and want to be responsive to the increase in instances of attorney depression, addiction and suicide, and feel that we, as an organization, can provide proactive resources to the legal community that promote wellness and provide effective methods for living a healthier lifestyle and understanding and coping with stress and depression. 

The PD community is uniquely situated to promote and advocate wellness at all levels within a firm and to provide training and support to their peers. Many firms now have committees and even departments dedicated to well-being for attorneys and professional staff. So, really, it was an easy decision to focus on well-being.

What will the program cover?

We purposefully split the program into separate panels to focus on three different demographics within the community: law students, attorneys, and professional staff within firms. We thought it was critical to address all three areas, as wellness and the impact of wellness within a firm begins in law school, continues through practice, and implicates everyone within the firm. 

The panel on law schools will address well-being challenges faced by both students and schools and the role that the profession can play in supporting law students’ well-being efforts. The panel on attorney well-being focuses on best practices to incentivize attorneys and staff to attend well-being programs as well as the most (and least) effective live programs, coaching, apps, and online programs. Finally, the panel on well-being for professional staff will help them to find value and fulfillment in the face of declining attorney well-being, and provides tools to manage increased stress caused by always-available technology, attorney mental health or substance abuse challenges, and unrealistic attorney expectations. 

Who is the intended audience? 

The program is intended for anyone in the PD community regardless of experience or title. While we planned the program around the PD audience, all attorneys will certainly benefit from the three panels, and take away a better understanding of why wellness should matter to them, the importance of well-being practices beginning in law school, and the value in having the professional staff also supported in their own wellness journey. We purposefully made the program complimentary for all attendees because we feel that well-being is such a critical topic. 

What other resources does PLI provide that focus on wellness training? 

PLI has a variety of programs that address the area of well-being and attorney mental health, available under “Attorney wellness and stress reduction” on our website. Notably, our December 10 program, Taking Control of Your Well-Being: Mental Health and Wellness for Attorneys, tackles the very important topics of overcoming the stigma of mental health and substance use challenges in the legal profession, and shows how to leverage your legal organization’s wellness program and steps to take if your firm doesn’t have one. 

Note: The American Bar Association has a list of assistance programs by state that provide confidential services and support to individuals facing substance use disorders or mental health issues. If you or someone you know are struggling, reach out to an assistance program or call 1-800-273-TALK (8255) for immediate support. 

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Practising Law Institute is a nonprofit learning organization dedicated to keeping attorneys and other professionals at the forefront of knowledge and expertise. PLI is chartered by the Regents of the University of the State of New York and was founded in 1933 by Harold P. Seligson. The organization provides the highest quality, accredited, continuing legal and professional education programs in a variety of formats which are delivered by more than 4,000 volunteer faculty including prominent lawyers, judges, investment bankers, accountants, corporate counsel, and U.S. and international government regulators. PLI publishes a comprehensive library of Treatises, Course Handbooks, Answer Books and Journals also available through the PLI PLUS online platform. The essence of PLI’s mission is its commitment to the pro bono community. View PLI’s upcoming live webcasts here. 

It is well known by now that hemp-derived cannabidiol (Hemp CBD) cosmetics represent the lowest level of risk for businesses. Indeed, CVS, Walgreens and Sephora are only a few of the major national retailers that now offer these products for sale.

The growing popularity of Hemp CBD cosmetics is due to several reasons. First, the FDA has not expressly prohibited the use of CBD in cosmetics like it has with conventional foods and dietary supplements and has limited its enforcement actions against companies that make egregious medical claims about their CBD products. Second, many state regulators do not seem to take issue with the sale and marketing of these products. Lastly, and maybe most importantly, the cosmetic industry has been poorly regulated for nearly a century. Unlike foods, dietary supplements, and drugs, cosmetics are not subject to premarket approval. Instead, the FDA relies on consumer complaints to monitor this self-policed industry. For example, recalls of cosmetics are voluntary actions taken by manufacturers or distributors.

Nevertheless, some federal laws and regulations apply to cosmetics marketed in interstate commerce. Both the Federal Food, Drug and Cosmetic Act (FDCA) and the Fair Packaging and Labeling Act (FPLA) mandate that cosmetics be safe and properly labeled. Note that most states have adopted and are implementing these very same laws and regulations.

Generally, the FDA will deem a cosmetic is unsafe or “adulterated” if it contains a harmful ingredient. Through its rulemaking process, the FDA has banned a small list of ingredients or substances from cosmetics. However, even ingredients or substances that are not expressly listed in the FDA regulations may be prohibited if proven to be unsafe for their intended use.

In its cannabis FAQs, specifically in answering the question, What is FDA’s position on cannabis and cannabis-derived ingredients in cosmetics?, the agency stated that:

“Certain cosmetic ingredients are prohibited or restricted by regulation, but currently that is not the case for any cannabis or cannabis-derived ingredients.”

Nevertheless, the agency went on to explain that:

“Ingredients not specifically addressed by regulation must nonetheless comply with all applicable requirements, and no ingredient — including a cannabis or cannabis-derived ingredient — can be used in a cosmetic if it causes the product to be adulterated or misbranded in any way.” (Emphasis added).

As such, manufacturers and distributors of Hemp CBD cosmetics should, at a minimum, ensure that their products are free of all substances found in the FDA regulations but also that their products are safe for human consumption before they are placed in commerce. Adopting these good business practices will not only help shield the CBD companies from falling under the scrutiny of the FDA (and that of state regulators), it will also help protect them from strict liability and other types of consumer lawsuits.

Moreover, growing concerns regarding the safety of cosmetics and demands for safer, clean labeled products, have led to the explosion of the global natural and organic beauty market, which includes Hemp CBD cosmetics. Thus, ensuring the safety and quality of Hemp CBD cosmetics does more than mitigate the risk of enforcement actions; it also provides Hemp CBD manufacturers and distributors with an opportunity to increase their revenues by giving consumers what they want and deserve.

In addition to ensuring the safety of their cosmetic products, Hemp CBD manufacturers and distributors must also check that their products are properly labeled or not “misbranded.” A cosmetic is misbranded if it is labeled in a false or misleading way, if it fails to include mandated labeling information, or if it is deceptive in any way.

According to several studies conducted in the past two years, including one recent study led by the FDA, many CBD cosmetics found on the market are mislabeled because they contain false potency claims, specifically lower concentrations of CBD than those listed on their labels. This issue is so prevalent in the industry that several companies, including Charlotte’s Web, have been hit with consumer class action lawsuits.

Another way a cosmetic may be deemed misbranded or mislabeled is if the product label explicitly or implicitly suggests that the product is intended to affect the structure or function of the body, or to diagnose, cure, mitigate, treat, or prevent disease, and thus, is a “drug” and not a cosmetic, as might be stated in the statement of identity or in the directions for use. Consequently, CBD manufacturers and distributors of Hemp CBD cosmetics should refrain from making any medical claims regarding the therapeutic value of their products. This, of course, would not render Hemp CBD cosmetics “lawful” under federal law — this won’t be possible until the FDA regulates these products; instead, such practice would further mitigate the risk of enforcement actions.

Therefore, even if Hemp CBD cosmetics represent the lowest level of risk for companies, and even if the FDA has yet to forge a legal path for the sale and marketing of these products, manufacturers and distributors should comply with all applicable safety and labeling requirements to reduce the risk of enforcement actions and to ensure the success and longevity of their business.

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Nathalie practices out of Harris Bricken’s Portland office and focuses on the regulatory framework of hemp-derived CBD (“hemp CBD”) products. She is an authority on FDA enforcement, Food, Drug & Cosmetic Act and other laws and regulations surrounding hemp and hemp CBD products. She also advises domestic and international clients on the sale, distribution, marketing, labeling, importation and exportation of these products. Nathalie frequently speaks on these issues and has made national media appearances, including on NPR’s Marketplace. For two consecutive years, Nathalie has been selected as a “Rising Star” by Super Lawyers Magazine, an honor bestowed on only 2.5% of eligible Oregon attorneys.  Nathalie is also a regular contributor to her firm’s Canna Law Blog.