With a seemingly endless amount of new mattress options becoming available, it is unsurprising that the market has become increasingly aggressive. As companies invest in more innovative solutions to get in front of customers, review sites, blogs and YouTube videos have moved to the forefront of how customers are deciding on their mattresses and how companies are attempting to battle for their business. With affiliate marketing becoming a colossal business for v/bloggers with the most coveted traffic, mattress companies are willing to pay influencers high affiliate commissions, but when relationships sour those same companies are just as glad to pay their attorneys.

Full Podcast Transcript

NASIR: Welcome to the podcast!

My name is Nasir Pasha.

MATT: And I’m Matt Staub. Two attorneys here with Pasha Law, practicing in California, Texas, New York, and Illinois.

NASIR: And this is where we talk about the business in the news and, also, add our legal twist to that business news.

MATT: This is going to come out after Thanksgiving, but I think this is a very appropriate story for Thanksgiving Day because it deals with actual sleeping, I guess, but it deals with mattresses.

NASIR: Do a lot of people buy mattresses on Black Friday or during Christmas holidays?

MATT: After the meal.

NASIR: I was thinking, like, the day after, you go out and buy a mattress.

One thing I didn’t realize is that this mattress industry is cutthroat. You wouldn’t think so, but it seems like, if you’re in the industry, whether you’re in retail or you’re in this now, these online mattress companies, this is where everything’s going now. You can literally buy your mattress online. You see it all over the internet – even on TV now they advertise for it. It’s pretty crazy.

MATT: Well, we’re going to be talking about the online aspect of it, as you say, but it makes sense if you’ve ever driven around and you see one company or one building business that sells mattresses and you’re likely to see a handful within a couple of minutes. I think the reason that is because, like you said, competition. Someone’s going to go to one store to look for a mattress. If they buy, that’s it. If not, there are going to be a bunch of competitors right there that can make the sale.

NASIR: The whole mattress thing, I’m sure you’ve bought a mattress before, I assume.

MATT: Never.

NASIR: Well, let me tell you what it’s like…

The whole mattress buying process, it’s never fun. I mean, not that shopping and stuff like that is ever fun. But it’s like they’re all the same. You’re making this kind of long-term investment where, if you make a mistake, even if they give you a guarantee return or whatever, you can try it out for 30 days, you’re not returning no mattress. Whatever you buy, you’re keeping. I can say that I’ve had pretty decent mattresses in my life. I would say that I kind of just get used to them – whether I like it or not.

MATT: All very good points. I’ve felt the same things. I don’t know about you, but the last one I purchased was actually online and it was through an ad on some podcast I had listened to. Like you said, it was try it out for a hundred days. If you don’t like it, we’ll come and pick it up. If you have to send it back, that’s not even feasible, really. I don’t know how you would even do that. But, yeah, it’s a big investment. They say, depending on how much sleep you get, I guess it would be anywhere from 25 percent to a third of your time of your life, potentially sleeping on a mattress.

NASIR: Yeah, that assumes that, when you’re sleeping, you’re sleeping on the mattress.

MATT: Exactly.

What we’re going to do is we’re going to kind of go through this. It’s a really interesting story that’s played out for a couple of years here dealing with online sales of mattresses which seems to be the growing trend. There’s a lot of different companies out there doing it – one of which is Casper which we’ll get into.

In recent months explosive amounts of high profile allegations of sexual harassment, assault, and varying acts of inappropriate behavior have transcended every sector of our professional world. With a deluge from Hollywood and politics, and the private workforce, accusations have inundated our feeds and mass media.

This harassment watershed has not only been felt within the constraints of high profile communities. It has affected every echelon of our society and impacts businesses, religious institutions, education, entertainment and government. We have seen a multitude of brave faces, who Time Magazine calls the Silence Breakers, come forward and stand up to Cosby, Weinstein, Trump, Ailes, Conyers, Moore and Spacey. No longer can businesses neglect the need to educate and protect themselves as well as their employees.

This pivotal moment is a call to action for business owners, supervisors and employees to focus on the policies and culture they contribute to in the workplace.; In this episode Nasir and Matt take a moment to reorient its listeners to well established legal principles as it applies to sexual harassment, especially in the current environment.

Full Podcast Transcript

NASIR: Welcome to our podcast!

My name is Nasir Pasha.

MATT: And I’m Matt Staub. Two attorneys here with Pasha Law, practicing in California, Texas, New York, and Illinois.

NASIR: And this is where we cover business in the news and add our legal twist to that news.

Today, we’re talking about, oh, so topical, right?

You know, we try to stay as topical as we can, but this is almost too much. I bet you, when this is coming out, it’s not even close to being over, and I’m trying to figure out a name for it. Basically, what’s going on with sexual harassment and sexual assault allegations that are going on in a high-profile sense. But we’re going to take a look at it more on a practical perspective in how it actually still applies. In a sense, the law hasn’t changed here. The law may be changing, but this stuff has been going on for a while.

We can talk about those that are business owners, how you can protect your business and protect your employees from this kind of environment. I think that’s very important right now.

MATT: Yeah, I think the caveat should be, if you’re a business owner that’s participating in this sexual misconduct, this probably isn’t the episode for you. The advice for that’s pretty simple.

NASIR: Yeah, that’s a very, very good caveat. But, at the same time, just because you made mistakes in the past doesn’t mean that you can’t change the culture and environment you have in the future as well. We’re going to talk a lot about that. We’re going to talk about just the general nature of the law and where it’s changing and also talk about some of the more salacious topics that are going on in the news as well.

MATT: Sure. I think what’s helpful to start out is just to kind of lay out or define what exactly sexual harassment is.

NASIR: Oh, I was going to say, what are people calling this? I don’t want to call it a movement because that doesn’t make sense. They call it a watershed moment.

MATT: Yeah.

NASIR: Is it a sexual harassment watershed moment? I’m not sure.

MATT: We have the whole episode to figure this out.

NASIR: Okay, I’ll come up with something.

MATT: The reason I think it’s helpful to define it – and we’re kind of seeing this now – obviously, there are some allegations that are pretty severe and some that are not as severe, but the importance is that it’s a very broad definition of what can be considered sexual harassment.

Generally speaking, it’s unwanted sexual advances or visual, verbal, or physical conduct of a sexual nature and that’s both same sex and different sex that we’re dealing with here.

Generally speaking, what would be behavior that would fall under this? You can kind of put it into categories. I’ll start with the more obvious. I’ll start with the most severe and kind of work our way down.

If you are not familiar with the EB-5 program started in 1990 to give green cards to certain qualified investors in the United States, then you may not have been alone a few years ago. Currently, the EB-5 program has since exploded since its inception and now hits its quotas consistently each year. The program has brought tens of thousands of jobs and billions of foreign investment.

The program has two main requirements: (1) An investor must put in a $1,000,000 investment or $500,000 for qualifying new commercial enterprises; and (2) create or preserve at least 10 full-time jobs within two years of admission to the United States. Generally, most investments fall in the $500 thousand level, but both thresholds are expected to be increased soon. The businesses that only require $500 thousand dollar investment are those that are in a “TEA” or “targeted employment area.”

There are two types of targeted employment areas or “TEAs”. Either its a rural area (an area far from cities and with low population) OR an area of high unemployment areas. TEA investments require a different strategy since only businesses that work well in areas of low population or areas that are economically distressed. For example, you would not want to build a high-rise building n the middle of nowhere or a store that would require a lot of high-end traffic.

After the initial process of application, the investor and his or her family is admitted to the United States under a conditional permanent residency. Within a reasonable time after the two year period, the investor will apply to lift the conditions and obtain a permanent residency status.

The EB-5 visa is one of the most complicated types of visa applications and the entire transaction requires significant sophistication in providing the proper documentation supporting the investors application. Pasha Law PC provides general counsel services for businesses and investors applying in the EB-5 program. Contact our firm today to learn more about this visa program.

Full Podcast Transcript

NASIR: Welcome to Legally Sound Smart Business!

This is Nasir Pasha.

MATT: And I’m Matt Staub.

We’re two attorneys here with Pasha Law, practicing in California, Texas, New York, and Illinois.

NASIR: Thank you for joining us, everyone.

Matt and I are in the same room again, recording in San Diego, California. Great weather right now. Great time to visit.

We are going to talk about EB5 visas – one of the most controversial immigration programs out there. It relates to businesses. It’s a great way to raise money. It’s also an excellent option for immigrants who want to come here and that have the cash to invest into an investment project. I think it’s really topical right now because there might be some upcoming changes in the law.

MATT: Like you said, it really can be kind of the best of both worlds in that it’s a way for people looking to get permanent resident green card. Foreign nationals can get that. Also, if it’s structured correctly, it’s supposed to bring jobs or create more jobs in the US. It’s seen as a win-win with the investment coming in, jobs created – everybody wins. But, as you’ll see in some of these examples, it’s not always the case.

NASIR: Let’s start with the critics.

A lot of critics say that it’s unfair for immigrants to just basically pay their way and skip the line, so to speak, in being able to enter into the country. But, of course, that may be an advantage and that’s exactly what it’s designed to do, but some critics also say that the money that’s brought in doesn’t necessarily produce the same kind of benefits and results that they’re looking for. I think that’s arguable. I mean, I’ve seen the arguments on both sides, but I think it’s also difficult to argue that that money poses no benefit. I mean, that’s money that was going into the country that wouldn’t otherwise be invested – even if it’s just $500,000 or $1,000,000.

MATT: This isn’t an immigration policy podcast.

Government requests come in multiple forms. They can come in as requests for client information or even in the form of investigating your company or your employees.

Requests for Client Information

General Rule to Follow

Without understanding the nuances of criminal and constitutional law and having to cite Supreme Court cases, any government requests for your client's information are rarely urgent and contemporaneous, i.e. usually they are made through formal channels and you are given time to comply. In such cases, it is only prudent to procure legal representation. Failure to do so could open yourself to liability in the event that you release information when you should not have or if you do not release information when you should have done so. The more difficult situations arise when a police officer or other government official shows up at your business' lobby, such was the case at the hospital in Salt Lake City, Utah.

Salt Lake City Hospital Nurse Arrest Incident

A Utah nurse was aggressively arrested when an officer claimed she was interfering in an investigation after she refused to let him get a blood sample from an unconscious patient.; The Salt lake City police detective requested a blood sample from an unconscious admitted patient who suffered injuries from a fiery crash. Nurse Alex Wubbles, now famous from her viral arrest video, correctly explained to the the detective that hospital policy (and according to a 2016 Supreme Court case,;Birchfield v. North Dakota) barred a blood draw unless the patient is under arrest, or there is a warrant allowing the draw or the patient consents. ;

Here is the 30 minute raw video of Officer Payne's body cam:

[youtube]https://www.youtube.com/watch?v=9Piuenvb-Zg[/youtube]

Days and weeks after, nurses, hospitals, and rights advocates alike were praising the efforts of Nurse Wubbles' confident position. She handled an obviously irate detective that seems to have intended to intimidate his way into obtaining a blood sample of an unconscious victim of a car accident, who later passed away from his injuries.

In this instance, the hospital clearly had a written policy for such requests. Even citing the law, the hospital defended its nurse to explain that without a warrant or an arrest, there is no implied consent to draw blood (unlike a breathalyzer, which was also discussed in;Birchfield).

What Can We Learn from Nurse Wubbles and her Hospital?

First, it is extremely difficult for any employee, whether executive or operational level, to respond to government official requests--especially live requests from police officers or detectives. This means that employees need training. They need to understand when they have a right to refuse, when they should comply, or how they should do so. Nurse Wubbles handled herself very calmly and only until it was proclaimed that she was being placed under arrest did she show any exclaimed response. For the viewer, the response was a natural consequence to the unlawful arrest. Nurse Wubbles was clearly trained on how to deal with this situation, though the new revised hospital policy has it so that police are not to interact with the nurses but must work directly with department heads for such requests.

Second, the hospital actually had a written policy. You can see in the video that she is referencing specific guidelines on what to do in such circumstances. Hospitals routinely receive such requests, and so it would make sense for them to have such a written policy, but hospitals are not the only common recipient for request of client information.

How Do Data Giants Like Google and AirBnB Handle Data Requests for User's Data?

Most online companies that store large amount of client data have received data requests from government agencies. It is inevitable that one of your clients will be involved in some criminal investigations or even civil; disputes.; Many of these companies actually post their policies online. For example,

Nasir and Matt suit up to talk about everything pertaining to employee dress codes. They discuss the Federal laws that govern many rules for employers, as well as state specific nuances in California and other states. The two also emphasize the difficulty in identifyingreligious expression in dress and appearance, how gender-related dress codes have evolved over time, and what clothing and grooming items are more susceptible to claims of employment discrimination.

Dress Codes in General

In general there is no federal law governing employee dress codes. Employers may implement whatever dress guidelines they feel are appropriate; however, it is when these dress codes violate a law as a result of implementing such a dress code. For example, an improper dress code policy may discriminate on the basis of gender, race, religion, disability, or any other federally protected status in direction violation of Federal law.

There are lots of different dress code policies that are completely legal. Though there can sometimes be challenges on defining the difference between "business casual" and "smart casual." (Apparently there is a difference).

Here are some examples of successful dress codes:

Starbucks

Starbucks has had a very definite dress policy which has just recently changed. No longer must Starbucks employees choose between those plain black and white tops. The company is now allowing and in fact inviting its baristas "to shine as individuals while continuing to present a clean, neat and professional appearance." Starbucks says that a range of shirt colors and patterns are now permitted. Apparently though, there are still some significant restrictions leaving them with a color range that is within the grays, navys, browns, etc.

Dreadlocks

The 11th Circuit Court of Appeals dismissed a lawsuit against a company that refused to hire a woman because she would not cut her dreadlocks. In 2016, a Federal Appeals Court ruled that banning an employee from wearing their hair in dreadlocks is not racial discrimination. In a 3-0 decision, the 11th Circuit Court of Appeals dismissed a cased brought by the Equal Employment Opportunity Commission against a company that refused a hire a woman because she would not cut off her locs. In this case the court made the determination that the employer did not intend discrimination. This is not a case for employers to rely since the road to hell can be built with good intentions. The court was criticized by legal analysts for not taking into consideration the disparaging impact such a policy would have against African Americans.

Ku Klux Klan

The Church of the American Knights of the Ku Klux Klan came at issue when a man was prohibited from showing displaying the “Fiery Cross” tattooed on his arm. Mr. Swartzentruber alleged that the “Fiery Cross” was one of seven sacred symbols of his religion. This argument failed and the court ruled in the employer's favor for its right to require the employee to cover his offensive tattoo (even though other employees were allowed to display their tattoos.

Religious Related Dress Code

We covered not too long ago the Supreme Court case that sided with the Muslim girl who was denied a job over head scarf. In that case, her hijab was not in compliance with the "Look Policy" of Abercrombie and Fith and that the company wanted to avoid having to deal with her anticipated request for religious accommodation.

In another case, police officers were allowed to wear beards and blue turbins.

Title VII is a Federal Law that makes it clear that no adverse employment decisions made based on forbidden motive, including the motive of discriminating against a certain retaliation. This includes that act of segregation. In other words, you can not just put certain races in the back, away from public viewing, for example.

Gender Related Dress Code

Gender related dress codes are an old issue coming into a new light in the last few years. Just this year,

Nasir and Matt discuss the life cycle of a negative online review. They talk about how businesses should properly respond, how to determine if the review is defamatory, the options available to seek removal of the review, how to identify anonymous reviewers, whether businesses can require clients to agree not to write negative reviews, and the prospects of suing Yelp, Google, Ripoff Report, or other review sites.

Full Podcast Transcript

NASIR: Welcome to our podcast!

My name is Nasir Pasha.

MATT: And I’m Matt Staub. We’re two attorneys here with Pasha Law.

NASIR: This is where we cover business in the news with our legal twist.

Today, we’re covering the ultimate legal breakdown of online reviews – something that we’ve dealt with a ton with our client businesses, right?

MATT: Yeah, probably more than I was expecting to ever but we’ve had clients where that’s been the only thing that’s been an issue. But, even for the clients that we do a lot of things for, it seems to be popping up with them as well, and I’m sure most people have, if they haven’t left their own reviews, they’ve at least used something like a Yelp or Google Reviews to at least look into something such as a restaurant or something else like that.

NASIR: Yeah, and I think early on in the internet, especially with the online reviews, most of the issues were dealing with businesses that deal with consumers. But, now, even B2B businesses, service industry, pretty much everybody has some kind of online profile where people can leave reviews – whether by choice or not, sometimes, profiles get created whether you like it or not.

MATT: Right. I’ve talked to a lot of different business owners who were confused how their Yelp pages even showed up. “I didn’t create this!” Well, it doesn’t really matter. They’re like, “Well, we can’t create my own page.” It’s like, well, good luck with that argument to Yelp.

NASIR: Yeah. And so, Yelp is a great example of online reviews. In fact, I would say that that’s 80 percent of our business – people complaining about Yelp reviews – and then, 20 percent everything else. It’s one of the most popular ones. In particular, a negative review on Yelp seems to have the most impact. But, also, there’s Ripoff Report. I know, if you get a bad review on Ripoff Report, depending upon how strong you are on the web, that can come up pretty high in the search engines if they search your business.

MATT: Yeah. Of course, it depends on the business. Sometimes, you type in a business’ name, it might be a whole bunch of things, and then their Yelp page. If you type the name in the right fashion, if you have a Google business page, it’ll pop up on the right. Reviews are right there, But, yeah, like you said, Ripoff Report, that can pop up really high on a search engine. It’s never anything good. Ripoff Report is only posting bad things so that’s going to be some bad news for your business.

NASIR: What’s different about Ripoff Report versus Yelp, on Google especially, Ripoff Report, in their title tags, they’ll put the actual title of the review. And so, unlike Yelp where it may show how many stars, et cetera – which may be negative – but, if they have something scathing like, “Oh, this business is a fraud,” or fraudulent or whatever, that will be what it says in the actual Google result which can be very, very damaging. But is it enough just to be a bad review to have legal action? Probably not. I mean, a true review that is bad has very little recourse, actually.

MATT: Yeah. To me, there’s different levels of “bad reviews” or one-star reviews. You have the ones that are – perfect example – you go to a restaurant, it was a terrible experience – bad service, food was bad. If you go on there and write completely truthful things about that experience, that’s just a legitimate bad review. And then, there’s ones where someone might leave a review, it’s more opinion-based or they just didn’t like the ambiance of a restaurant or something to that effe...

On this episode of the Ultimate Legal Breakdown, Nasir and Mattbreak down social media marketing withguests Tyler Sickmeyer and Kyle Weberof Fidelitas Development. They first discuss contests and promotionsand talk about where social media promotions can go wrong,when businesses are actually running an illegal lottery, and the importance of a soundterms and conditions. Next, they talk about the recent press release from the FTC tomarketing influencers about necessary disclosures in online marketing and how to avoid problems like those that occurred at the Fyre Festival. They wrap things up with a discussion on intellectual propertyinfringement, including issues caused by rogue ex-employees, affiliate relationships, and copyright infringement claims.

Full Podcast Transcript

NASIR: Welcome to Legally Sound Smart Business!

My name is Nasir Pasha.

MATT: And I’m Matt Staub.

We’re two attorneys here with Pasha Law.

NASIR: Welcome to the podcast!

Today, we are doing the ultimate legal breakdown of social media production. But, today, we have some special guest to give us some little insight on the marketing side of things. We have Tyler Sickmeyer and Kyle Weber – two marketing gurus.

Kyle, you’re in Tennessee, right? Tyler, you’re in San Diego?

TYLER: Yes, that’s correct.

Thanks for having us on, guys!

KYLE: Yeah, thanks!

NASIR: Definitely! We definitely appreciate it.

At the top here, I do want to kind of give some background.

Tyler, why don’t you give us a good introduction of what you and your company does and how you service companies? We basically have a similar crossover of clients. Tell us a little about that.

TYLER: Absolutely!

Fidelitas is a full-service marketing and ad agency based in San Diego in Nashville. We work with clients across a variety of channels – both digital and traditional – including social media which we’ll talk about today. We like to service more of a strategic partner on our side of things. We like to come in and help guide clients through the actual strategy of why we’re posting what we’re posting rather than just throwing something up because it’s Tuesday so we need to throw up another cat photo. We try to keep it relevant and make sure that we can actually quantify the ROI for our clients on the backend of the campaigns as well. That’s a little bit about us.

NASIR: I love cat photos.

Tyler and Kyle have also their Lion’s Share Podcast. We’ll put a link to that in our show notes as well. We actually just cut an episode with them earlier today. So, I’m looking forward to hearing that as well.

Let’s get into our stories today. What are we talking about today, Matt? What’s their first topic?

MATT: The first thing we have here, maybe some of you might have seen it in the news, this company, it’s actually a couple of college students in Arizona – Sunny Co Clothing. They ran this publicity stunt through their Instagram basically saying – I’ll summarize it here – “Sharing is caring. Everyone that posts this photo—” and it was a woman in a bikini “—in the next 24 hours is going to get a free Pamela Sunny Suit which is the bikini.

They post this, try to get their name out there, and then they figured maybe we’ll get a couple of bites on this and more people will know about this. Well, the problem is it sort of backfired. As they ran this, more than 3,000 people had reposted in the image and they actually had to cut the post out before the 24 hours they had initially put. They kind of backtracked on that, too.

Basically, they ran into the issue – this is the issue that I guess some companies have – they run this marketing campaign and they don’t really think it through before they just do it. They kind of just push the send button and see what happens. There’s a problem with that. As you can see, with this company, they basically ran through way more than their inventory was and now they’re at the stage of having to try to figure out some sort of solution to it.

The issue here, I guess,

On this episode of the Ultimate Legal Breakdown, Nasir and Matt go in depth with the subscription box business. They discuss where subscription box companies have gone wrong(4:30), the importance of a specifically tailored terms and conditions(6:30), how to structure return policies (11:45), product liability concerns (14:45),the offensive and defensive side of intellectual property (19:00), forming partnerships (23:30), when to form multiple entities (31:45), and rules and logistics for shipping (34:00).

Full Podcast Transcript

NASIR: Welcome to Legally Sound Smart Business!

My name is Nasir Pasha.

MATT: And I’m Matt Staub, and we’re two business attorneys with Pasha Law.

NASIR: Yeah, welcome to the podcast today. We are doing our ultimate legal breakdown of the subscription box business.

MATT: Yeah, looking forward to this one. it’s a pretty fun topic because subscription boxes can offer many different things. I’m sure that most listeners have probably either ordered their own subscription box or maybe have their own business.

NASIR: You’re saying most people either have their subscription box business? Most people have subscribed to one, at least. I mean, some people are addicted to it.

MATT: Well, it’s nice.

NASIR: And they can be addicting.

MATT: And we’ll get into why that’s the case.

Just for those of your that aren’t aware, subscription boxes, it’s a pretty simple concept – at least the service aspect of it. Basically, you pay an amount and it’s typically every month but every month you get a delivery to your doorstep and it contains a boxful of items. It can be anything. I mean, I think the ones that people might be most familiar with might be a Blue Apron food service or Nature Box, Dollar Shave Club.

NASIR: Dollar Shave. Loot Crate seems popular, too.

MATT: The general concept is you pay this monthly amount and, every month, you get a box of different items and most of them are themed to, like I said, some sort of concept behind it – whether it be food, whether it be some sort of artistic thing. At this point, it’s a pretty booming industry. It can be anything few and far between – and I believe, when we checked here – 5-billion-dollar industry, 2,000 different services, according to My Subscription Addiction which is my go-to for subscription box statistics.

NASIR: And it’s growing!

I mean, 3,000 percent as far as online visits for subscription companies people are interested in the last three years, people are interested in this stuff and it seems like there’s basically two types of these businesses – the ones that curate products that they basically pick a theme – like, you said, the Blue Apron where they just kind of put together food that might be good for this particular recipe; some of them actually create their own product and it may be a different product every month. Somehow, they are actually the creators of it. So, it’s two types of categories there.

MATT: Right, and we’re going to get into this later but, obviously, if you have the ladder there – the one where you’re creating your own product that you’re delivering out, you might have a little bit less to worry about from a legal stand. Well, I guess I shouldn’t say that.

NASIR: Less than more.

MATT: Yeah.

NASIR: It’s a different type of liability.

MATT: Let’s get into some of these big issues here for these businesses. I think it all kind of starts where a lot of businesses do – with the underlying contract. In this case, the terms and conditions for these services. You know, I’ve ordered my own subscription boxes. I’ve kind of looked around it. Some others, just to see what’s out there. Surprisingly, a pretty wide array of terms and conditions, terms of service, whatever you want to call it that are out there. Some of them are very well-detailed, some of them are…

NASIR: Horrible.

MATT: Yeah, I was going to put it nicer than that but, yeah.

NASIR: No, they are horrible. We have a few subscription box clients. In fact,

Nasir and Matt discuss the suit against Apple that resultedfrom a car crashed caused by the use of FaceTime while driving. They also discuss howforeseeable use of apps can increase liability for companies.

Full Podcast Transcript

NASIR: Hi and welcome to Legally Sound Smart Business!

I’m Nasir Pasha.

MATT: And I’m Matt Staub. Two attorneys here with Pasha Law – offices in California, Illinois, New York, and Texas.

NASIR: Welcome to the podcast for a little short break we had between our last episode and this is where we discuss current business news with a legal twist.

Today, we are talking about how developers – especially mobile app developers and other business owners in that space – can deal with possible liability for their software apps and their products. In this case, it’s a sad story of an Apple app that actually caused, well, it’s alleged to have caused a deadly accident.

MATT: Yeah, let’s do a little bit of the background here on how we first started discussing this.

There was a car accident back – actually, on Christmas Eve in 2014 – in Texas. The reason this is just kind of surfacing now is they just filed the lawsuit here, two years. I assume that’s the potential limitations. They had to get that in in time. But there was a car accident with a driver – a 20-year-old – who was on his way to visit family on Christmas Eve. He was – for whatever reason – using Facetime while driving. For those of you who aren’t Apple or iPhone users, Facetime is basically a video call. You’re able to see the other person and vice versa when you’re doing a phone call. Kind of like Skype, I suppose. He’s driving on the highway and wasn’t necessarily paying full attention. He crashed into the car of this family and – you kind of alluded to this – the sad story behind this is it resulted in the death of the family’s 5-year-old daughter who was in the backseat. There was actually four people in the car – the parents and the two kids. I believe all were injured. I believe the other three were injured and then, of course, the unfortunate death of the 5-year-old. That’s kind of the backstory of what happened here.

So, what happened has happened since. The family is now suing Apple, essentially alleging that Apple is negligent and not having any sort of safeguards that would restrict the use of Facetime while driving.

When I first heard that statement, I thought, “Well, I don’t really know about that,” but the interesting thing about this is Apple actually had, as early as 2008, when they filed for this patent and developed this technology. They call it kind of lockout technology. It would basically lock out the driver from using certain apps while operating the vehicle which, now with that knowledge, I didn’t know if that was something you would come across or you knew about but, when I found that out, I was like, “Oh, well, that makes this case a lot more interesting.”

NASIR: But I have an inherent problem with the argument because, you know, just because you filed a patent, you have an invention, there’s commercialization – and this is kind of off-topic – commercialization of an invention is a lot different thing than actually inventing it in itself. Like, I can invent a machine that travels through time but because it costs a billion dollars to make, I haven’t been able to actually build it yet. And so, I’m looking for funding today.

The point is, you know, just because they invented it, I can still file a patent but that doesn’t mean they can actually implement the software. For a practical example, maybe they had the technology but maybe the processor speed of the phone isn’t fast enough to be able to quickly detect if you’re moving or whatever reason. Alone, by itself, assuming that argument is valid just because they have a patent doesn’t mean it’s a viable option to protect the user.

MATT: Well, yeah, with your invention, you could essentially just be sued for whatever bad thing happens then because why didn’t you just emplo...

The guys kick in the new year by first discussing Cinnabon's portrayal of Carrie Fisher as Princess Leia soon after her death, as well as other gaffes involving Prince and David Bowie. They alsotalk about right of publicity claims companies could be held liable for based on using someone's name or likeness for commercial gain.

Full Podcast Transcript

NASIR: Hello and welcome to Legally Sound Smart Business.

I’m Nasir Pasha.

MATT: And I’m Matt Staub. We’re two attorneys here with Pasha Law, practicing in California, Illinois, New York, and Texas.

NASIR: Yeah, welcome to the podcast where we cover business in the news with our legal twist.

Today, we are discussing some of the do’s and don’ts of celebrity endorsements and what to be aware of when using their likeness and recent gaps in the year 2016 f these instances.

MATT: Yes. I mean, I guess, when people listen to this, it will be 2017 – unless they’ve hacked into both of our computers and pulled the audio files for whatever reason.

NASIR: Or they could be listening in 2018, too.

MATT: That’s true – if podcasts are still around.

NASIR: Only for two years.

MATT: Let’s take a long trip back to 2016 here which will be a couple of days at this point. I think, especially this past week in particular, it’s been going around how 2016 was the year of falling stars – all these high-profile celebrities have passed away in 2016. You know, recently, we have Carrie Fisher. I guess the timing of this too is pretty interesting. I can’t remember if you’re a Star Wars person or not.

NASIR: Yeah, with the new Star Wars Force Awakens?

MATT: Rogue One, yeah.

NASIR: Rogue One, yeah. I’m a huge Star Wars fan.

MATT: As you can tell.

NASIR: No, actually, I did hear it was good. Go ahead, sorry.

MATT: Understandable.

With all these big-time, big-named celebrities passing away, we had Carrie Fisher. The reason I mention that is that happened, she was Princess Leia in, well, I want to say the original Star Wars movies but it depends how you defined that, I suppose.

NASIR: The original episodes – 4, 5, and 6.

MATT: Yeah.

NASIR: And she was also in Force Awakens.

MATT: I guess you kind of allude to this but it hasn’t become an uncommon thing for a brand or a company to pay a little tribute to these fallen celebrities. Obviously, tweeting out a message or posting something on Facebook, referencing these different individuals has become pretty common.

What Cinnabon did – and it was very quick, you had to be very quick on the trigger to see this because I think they deleted it soon thereafter but we’ll link the photos so you can see – they put a photo up, it’s kind of a… how would you describe it? It’s almost like a painting.

NASIR: One of those almost sand pieces. In this case, cinnamon art pieces.

MATT: Cinnamon art pieces, yeah, drawn with cinnamon. Basically, kind of an outline of Carrie Fisher except – anyone that’s seen Star Wars – the hair buns on the side of her head, it was a Cinnabon. It looks kind of weird. When you first told me about this, it wasn’t what I was envisioning. You know, they have this and it says, “RIP Carrie Fisher. You’ll always have the best buns in the galaxy.” That was the tweet.

NASIR: It’s so tasteless. I’ve always tried to figure out if other people had opinions about this. I know maybe some people, their humor is different. It’s not that it’s not meant to be funny. Obviously, it’s meant to be a tribute and I’m sure the intention comes into play. But it seems really weird, right?

MATT: I think intent is the keyword that’s going to kind of run throughout this. What was the intent behind this? I think it does seem like they were trying to pay some sort of tribute but the approach was not executed that well. I mean, the whole thing wasn’t executed that well, but the approach was just not great. You know, I think it got more flack than positive feedback. There was some people that said, “You know, she had a pretty good sense of humor.