Understand Your Rights. Solve Your Legal Problems
By using and modifying open-source software and not making its source code publicly available, Vizio breached two public licenses, says the complaint filed Tuesday by SFC in Orange County, California.
SFC is an advocate for developers of open-source software projects. In a statement, it said, "the first legal case that focuses on the rights of individual consumers" as beneficiaries to the licenses. The nonprofit’s sponsors include Red Hat, Mozilla, and Google.
SFC’s complaint alleges that Vizio used software that is covered by two General Public License agreements. The software was allegedly used in its SmartCast platform for streaming content from services such as Google’s Chromecast to its TVs. However, the SFC claims Vizio did not make its source code publicly available. Under the licenses, the software is supposed to be both publicly accessible and modifiable.
SFC said, "At their heart is a simple bargain. Recipients of the licensed software are entitled to use, examine, modify, adapt, and improve the software however they see fit. In exchange, the recipients must allow their licensees" to do the same.
However, in its complaint, the SFC argues Vizio has “taken full advantage of the rights granted by these agreements but refuses to let others enjoy the same rights.”
The SFC has asked the court for an order requiring Vizio to share the code.
The Competition and Markets Authority (CMA) said the social media giant had purposefully failed to comply with its order. The UK’s competition regulator also said that the penalty imposed served as a warning that no company was above the law. In recent times, Facebook’s business practices have caused it to increasingly come under fire from regulators and lawmakers.
According to the CMA, Facebook failed to provide complete updates about its compliance with requirements to continue to compete with Giphy and failed not to integrate Giphy’s operations with its own while investigations were underway. Despite numerous warnings, the social media giant did not provide the necessary information, the CMA said. The regulator believes its failure to comply was deliberate.
However, Facebook has said, "We strongly disagree with the CMA's unfair decision to punish Facebook for a best effort compliance approach, which the CMA itself ultimately approved.
"We will review the CMA's decision and consider our options."
The Swiss bank’s settlement with the US Securities and Exchange Commission (SEC), the Justice Department, and the UK’s Financial Conduct Authority (FCA) was announced just moments before Switzerland’s financial regulator rebuked it for its long-running corporate espionage scandal.
The UK and US charges stem from almost $1 billion in bond offerings as well as a syndicated loan that Credit Suisse helped to arrange between 2013 and 2016 which financed a Mozambican tuna fishing industry project. A significant percentage of the proceeds from the project were channelled back to a group of 8 Credit Suisse bankers and Mozambique officials, who were charged in 2018 for money laundering and defrauding US investors. Prosecutors in the US said that at least $200 million of the loans had been diverted to the group of 8 bankers and officials. In 2019, the former Credit Suisse bankers pleaded guilty.
On Tuesday, the authorities claimed that through the actions of its bankers, Credit Suisse had fraudulently misled its investors and violated US bribery laws. Credit Suisse is now set to pay a criminal fine of $175 million to the Justice Department, $99 million to the SEC, and $200 million to the UK authorities. The bank will also excuse a debt of $200 million owed by Mozambique.
According to communications regulator Roskomndzor, Google failed to pay 32.5 million roubles ($458,100) in penalties imposed this year so far. Roskomnadzor has said it will now seek a fine of 5-20% of Google’s Russian turnover. This could total as much as $240 million.
Recently, Russia has stepped up pressure on foreign tech companies, lowering the speed of Twitter and routinely imposing fines on other tech firms. Alphabet and Google have both been accused of caving to the Kremlin pressure after they took an anti-government tactical voting app down from their stores.
Earlier this month, Roskomnadzor said it would ask a court to impose a turnover fine on social media giant Facebook, citing legislation cited in December 2020 by President Putin.
Currently, Google is battling a Moscow court ruling demanding it to unblock the YouTube account of Konstantin Malofeev, a sanctioned Russian businessman, or otherwise face a compounding fine on its overall profits that would double each week. If paid, the colossal fine would force the tech giant out of business within a matter of months.
GM sued FCA back in 2019, claiming that the company bribed United Auto Workers (UAW) union officials over several years to corrupt the bargaining process and gain advantages. GM says this cost it billions of dollars. Its lawsuit had sought damages in an amount to be determined at trial.
On Friday, Wayne County Circuit Judge David Allen dismissed GM’s suit, which also named two former FCA execs who have previously pleaded guilty to bribing UAW officials.
The Michigan judge said that GM "failed to adequately demonstrate that FCA caused it any actual, legally recognisable harm through its bribery scheme."
The judge also noted that GM’s claims against FCA spanned more than ten years, dating back to 2009. He said that “even the most enthralling drama must eventually reach a conclusion. This one is no exception."
On Sunday, a spokesperson for Stellantis said, “As we have said from the date the original lawsuit was filed, it is meritless. The courts once again agreed and dismissed GM’s complaint."
Meanwhile, a spokesperson for GM said, “We respectfully disagree with the ruling and are considering our legal options."
Building on a well-established relationship, the partnership with BPP University Law School will focus on an integrated programme of legal, technical, commercial, and personal development skills for trainees and solicitor apprentices. The first intake at BPP will begin in September 2024.
Commenting on the firm’s programme, Alexandra Gower, Partner and Training Principal at Osborne Clarke said, “People often ask me 'what the future of business may look like,' and this is a real opportunity to consider what it means for the way our lawyers learn about the law, apply the law and, importantly, translate the law to meet the needs of the clients of the future. And that's not just about legal technical expertise, it's the full package of developing the person as well as the lawyer.
"At a minimum, junior lawyers should expect firms to support them in developing their communications skills and building relationships with peers, colleagues and clients. Our culture is at the heart of our business and drives how we support our people's development, both as lawyers and individuals. And so our programme will go beyond to cover everything from legal technology and sector innovation through to reflective learning, inclusivity and personal well-being."
Osborne Clarke also announced the appointment of Dimitri Vastardis to the newly created role of development manager. Vastardis will assist the SQE training regime, joining from BPP where he lectured and supported the corporate practice areas at the school.
Representative Peter DeFazio, who chairs the Transportation and Infrastructure Committee, said that Boeing senior leaders are responsible for the culture of concealment that led to the 737 MAX crashes and the loss of 346 lives.
Former pilot Mark Forkner was set to be arraigned after being indicted by a grand jury in Texas on six counts of scheming to defraud Boeing customers to obtain tens of millions of dollars. DeFazio said that the pilot’s indictment should not be the end of accountability for Boeing’s colossal failure. Robert Clifford, a lawyer representing families of relatives killed in the crash, has called the Forkner indictment “a corporate whitewash.”
Congress has approved legislation to reform how the Federal Aviation Administration (FAA) certifies new airlines. DeFazio has called on the FAA to work urgently to implement the bipartisan legislation. In his September 2020 report, DeFazio said a “grossly insufficient oversight by the FAA” contributed to the fatal crashes.
The 737 MAX was grounded in March 2019 following the fatal crash of the Ethiopian Airlines Flight. In January of this year, Boeing agreed to pay over $2.5 billion in fines and compensation after reaching a deferred prosecution agreement over the MAX crashes.
This month we have the pleasure of hearing from lawyer, author and producer Dale M Fiola, who explores how a litigator adopts a ‘storyteller’ persona in the courtroom. What is behind this phenomenon, and how does it affect attorneys’ performances at trial?
It is no accident that the best trial litigators are storytellers. This is not to say they dabble in fiction or create a false narrative. What those litigators have learned over their years of practice is they have to keep the trier of fact – namely, the jury – interested in the case. Once a juror disconnects from the case, he or she only half-listens or doesn’t listen at all. At the time of deliberations, that juror may have a totally different view of the case from those who listened attentively. It can seriously hamper a fair trial. A trial litigator knows the secrets of how to keep the jury listening: they have to be a good storyteller. That ability to tell the story as the facts support requires a certain level of role-playing.
Let’s face it. A trial must be interesting, if not entertaining, to keep the court and the jury hinged to it and the facts spun from the evidence. That philosophy is imbued in almost every aspect of our lives. As the American psychologist William James wrote in 1890, “there is no such thing as voluntary attention sustained for more than a few seconds at a time.”
This, then, requires the trial litigator to hone their skills to make their case sound appetising to these courtroom listeners and viewers. He or she will use a complement of electronic gadgetry to engage the interests of the jury using demonstrative evidence, graphic reproductions of scenes and objects, expert witnesses and computer-generated images (CGI). The more the trial litigator utilises this sophisticated technology, the more likely the jury will “go along for the ride.” By changing the method of the delivery of proof during trial, the jury will be pulled into each new visual or audio display reshaping their interest in the case.
It is no accident that the best trial litigators are storytellers.
The more controversial or high-powered a case is, the more the trial litigator role-plays to a larger audience. It is only human nature for the attorney to up-scale his or her presentation to parade their skills in front of the media or larger courtroom audiences. In 2003, I had a case in federal court and I was plaintiff’s counsel against a governmental entity. Through the four to five days of jury trial, there were no more than three or four US attorneys in the audience at all times and no one else. That changed when the central female witness alleged to have engaged in sexually inappropriate conduct in the workplace took the stand. Other courtroom personnel and a couple of busloads of high school students attended my cross examination of this witness. The courtroom ballooned in size from 4 to about 120 spectators. I felt the pressure to “pull out all the stops” and do the best I could to cross examine that witness. I could easily equate my feelings with the pressure that Clarence Darrow must have experienced when he squared off against William Jennings Bryan in the Scopes trial.
During the criminal murder trial of People v. Orenthal James Simpson, I attempted to visit the courtroom but was turned away because I was not a person of interest. What I saw outside the courtroom was astonishing and circus-like. Cameras and news trucks were stationed outside the courthouse and in adjacent parking lots. Camera cables ran through the corridors of the courthouse and into Judge Lance Ito’s courtroom. The attorneys involved in the case were mentioned nightly in news broadcasts across the country. Those attorneys became household names in the press, including each member of the Dream Team. Whether one was a juror, witness or just a casual observer, there was no mistaking it; the dynamics in place captivated everyone’s attention, including the jury. There was no safe haven from paying attention to the trial.
To a lesser degree than the OJ Simpson case, I represented a police officer on a case that went national. I spoke with the assistant to a well-known network newscaster who wanted a picture of my client. I refused the picture but instructed the network that if it wanted to hear the truth it should show up at court on a specified date. To my surprise, on that date, a film crew came to the courtroom to hear me argue. I have had previous appearances before the Judge and found her to be a little unruly when she would abruptly “cut off” argument of counsel to move her calendar along. She had cut me off on earlier occasions wearing her glasses. But, on this occasion, in the presence of the camera lens, the Judge took off her glasses, smiled intently and allowed me to argue as long as I liked. She was exceedingly polite to me. There was no question that the media had a definite impact on the courtroom demeanour of the Judge and the attorneys involved.
The more controversial or high-powered a case is, the more the trial litigator role-plays to a larger audience.
It is written in our social DNA that we must look and sound our best on camera. The era of selfies is instructive on this point. As soon as the lens is pointed in our direction, there is a knee-jerk reaction to smile.
It is hard to separate an attorney from their case. They want to win at all costs. Winning means more legal business, a good image, better referrals and legal standing. Part of the image the attorney wishes to cultivate is that they have all the trappings of success: fancy offices, cars, homes, expensive dress suits and a sophisticated staff.
There is no question Hollywood has had a significant effect upon legal performance. To Inherit the Wind, To Kill a Mockingbird, A Few Good Men, Perry Mason, LA Law and many other movies and television series have inspired generations of people to become lawyers and, seemingly, influenced them to act as the characters we have loved for so long. This is a classic display of “life imitating art” when those movie buffs want our lawyers to represent us as the characters that we have idolised in film. This has led to clients having a distorted view of how lawyers perform based on the movies they have watched. This is readily apparent in divorce proceedings where the dynamics are missing for theatrical elocution which is normally reserved for criminal or civil rights proceedings. Most of the divorces are quietly resolved in chamber conferences and off-site conference rooms with signed marital settlement agreements without a single word being “fired” in open court. This leaves some of the spouses suspicious that their attorneys did not fight as hard as they could have for an equal division of the property or child custody/visitation. Hollywood has created a false firebrand of law.
There is no question Hollywood has had a significant effect upon legal performance.
As Sun Tzu stated in The Art of War, “Victorious warriors win first then go to war, while defeated warriors go to war first and then seek to win.” One’s persona just before battle carries a lot of swagger with the opposition. If the attorney is well-prepared for trial and the opposition knows it, this becomes a compelling incentive to settle the controversy.
If the case does not settle, the attorney must adjust to their opponent’s delivery skills. In other words, if the opposing attorney is a pathos pleader, a talented attorney will adjust their tone level accordingly to manifest a calm and controlled delivery. If the opposing counsel is bent on using logos, that same attorney might act to refute the logic by focusing on the human characteristics of the parties involved. The sensibilities of the parties have a lot to do with why the parties are in court in the first place. It is important that the attorney develop a contrasting courtroom style from their opponent’s that will make their case stand out. This is not gamesmanship but using a tactical approach for delivery of their case to the trier of fact.
Yes. Every case is different: different facts, laws, parties, judge, jury, and courtroom. An attorney certainly doesn’t want to act like King Lear when the scene is set for Much Ado About Nothing. Changing personas can work effectively but must be based upon two important caveats: do not lose your credibility to the trier of fact or transgress ethical requirements. Tonal adjustments are necessary on direct or cross-examination. When dealing with a minor or someone who is quiet and meek, a more subdued approach to examination should be followed. When dealing with an opposing party who is openly hostile in their responses, a more striking and pungent cross examination is advisable.
It is important that the attorney develop a contrasting courtroom style from their opponent’s that will make their case stand out.
Yes. As the number of attorneys is on the rise and the number of real worthy cases is beginning to plateau, attorneys are more aggressive in attracting business. This is most apparent when one sees the proliferation of billboards springing up around most cities and TV commercials extolling the virtues, records and monetary awards of the area’s legal practitioners.
Yes. The effect is fewer jury trials and scaled down performances before judicial officers. Remote hearings have softened the bravado of counsel that usually is reserved for juries.
It can be both. The most important consideration is to know how and when to use role-playing. I started public speaking when I was 12 years old and have been able to develop it over the years. No one wants to see a “staged” performance that seems manufactured and artificial. One should never lose sight of the following – “You, as the attorney, must truly believe in every aspect of your client’s case.” The words you choose in Court need to support that belief entirely.
I think of myself as the director of a major film production and focus on those points that will highlight the issues of my case. I want to interest the judge and jury, but especially the latter.
Al-Law-Gory is about a trial judge in Idaho who has to make tough decisions as to imposing the death sentence on criminal defendants. Unusual things happen in the courtroom and chambers that confound his decision-making. He finds his decisions to dismiss or impose a lighter sentence are being countermanded by a spiritual presence that has taken over the courtroom. At first, he thinks that it is just his mind playing tricks on him but later discovers Valkyries, Viking mythological female warriors, have inhabited the court and are imposing their will over Judge Ferritt Lunceford.
In one scene, Judge Lunceford attempts to dismiss an arson/murder case against a defendant based upon insufficient evidence to prove criminal wrongdoing. That defendant was charged with starting a fire in an apartment that caused the death of one or more occupants. While in chambers, he attempts to sign his name to dismissal papers, but none of his pens will write. He instructs his court clerk to electronically sign his signature to the dismissal document and is elated about out-smarting this spiritual presence. That does not end the presence’s involvement in the matter. The freed defendant travels in his old 1965 GMC truck and stops for gas. He sees an attractive lady jumping rope at the station. She asks him for a ride and he obliges. Eventually, the lady executes the defendant, which the reader later learns is none other than a Valkyrie.
[ymal]
Scene after scene unfolds with the clash between the Valkyries and the judge. His arthritic state coupled with the unusual visits from strange people and happenings in his chambers push the judge to the brink of insanity. It moves from his courtroom to his home where occult phenomena place him in fear for his health and safety. He huddles in bed with blankets over his head shivering and shaking, trying to shield himself from Valkyries visiting him in the dead of night. One requests him to sit in judgment with accused defendants at his kitchen table and to sign death warrants. There are other horrific events that occur.
Without revealing the ending, the allegory of the story is that we must all make decisions in our lives based upon facts as we know them. Despite all odds, Judge Lunceford made “life or death decisions” based upon the facts available. Sometimes as a layperson, or even a judge, one cannot see the total picture because that person has not been supplied with all the facts. All the facts may never be revealed in one’s lifetime. Yet, all of us have to make decisions based on the facts we have in hand. Judge Lunceford felt all his decisions were well-reasoned, but the Valkyries knew more about the facts and determined his decisions were erroneous.
The book has been released on Amazon and is available in hardback, digitally or by audiobook.
I plan to continue the practice of law but slowly venture into film production. I have just completed film production of my new movie entitled Caralique, which should be released in Spring 2022. It is a story of a child prodigy who shows great talents in fashion design and rises to become the new Coco Chanel revolutionising fashion, pushing it into the 21st century. The film is directed and produced by UK award-winning Director Elizabeth Blake-Thomas and co-produced by Fashion Designer Lana Young. After working on the set of this production, I can safely say it is not easy to make a movie.
Next year, I also intend to roll out a feature film of a musical I created called Witchstruck.
Dale M Fiola, Founder
Address: 200 North Harbor Boulevard, Suite 217, Anaheim, CA 92805
Telephone: (714) 635-7888 | (714) 635-7887
Email: dmfiolaw@gmail.com
Dale M Fiola has been handling employment and labour actions since the early 1980s. Through decades of sound legal practice, the Law Offices of Dale M Fiola have focused primarily upon representing employees in all types of litigation, and have successfully brought actions on behalf of employees against large corporate employers, local governments and state and federal agencies. Dale is also a member of several professional associations and is currently a member of the California Employment Lawyers Association (CELA).
This article by Daniel Powell and Leigh Crestohl of Zaiwalla & Co considers a recent investment treaty claim by Air Canada against Venezuela, to repatriate outstanding profits by way of currency exchange between local Venezuelan Bolivars and US Dollars.
During those proceedings, current political affairs in Venezuela, such as the impact of sanctions, were raised in submissions. The manner in which the Tribunal in its Award navigated through these potential obstacles offers some insight for international arbitration practitioners for future cases. The Tribunal also makes some interesting points about the interpretation and application of the fair and equitable treatment (FET) provisions in investment treaties, a broadly defined protection that has been subject to varied approaches by different Tribunals.
Canada and Venezuela entered into a bilateral investment treaty (“BIT”) in 1996. Air Canada, Canada’s publicly traded national carrier, had previously been repatriating profits on earnings in Venezuela by converting Bolivars into US dollars, through a Venezuelan State commission that managed the exchange of currency. However, in 2014, following a significant devaluing of the Bolivar, the commission altered the currency exchange rates. Shortly thereafter, Air Canada suspended its flights to Venezuela. Air Canada later invoked arbitration pursuant to the BIT under the ICSID Additional Facility Arbitration Rules. Air Canada alleged a breach of the protection of the free transfer of funds (Art. VIII, BIT), breach of the protection of fair and equitable treatment (Art. II, BIT) and expropriation (Art. VII, BIT).
Air Canada was awarded $20,790,574 million as repatriation, an amount to which it was entitled after set off against sums that were also owed to Venezuela as part of the currency exchange, plus costs and simple interest. As the Tribunal found that there was no expropriation, no additional compensation was awarded.
Damages were awarded on the basis of the Tribunal’s finding that Venezuela had breached the protection of the free transfer of funds through its failure to process Air Canada’s numerous currency exchange requests. However, despite the fact that the FET discussion was therefore largely obiter, it is instructive to consider the Tribunal’s approach to the FET provision and some procedural issues that arose because of political factors and the impact of international sanctions. Such issues are occurring with greater frequency in international arbitration.
The parties argued for rival approaches to interpreting the scope of the FET protection under Article II of the BIT. However, the Tribunal rejected Venezuela’s argument that the threshold for a violation of the FET standard was high, requiring a more restrictive interpretation of Article II of the BIT. The Tribunal instead adopted a purposive approach to interpretation:
“Rather, international law requires this Tribunal to interpret the concept of fair and equitable treatment in a manner consistent with the context of investor-State arbitration and the purpose of the RIT itself: namely investment protection. In this regard, the more liberal approach, which focuses on the broadly consistent elements of "fair and equitable", is appropriate”.
The purpose of the BIT was to provide investment protection and, as an investor, Air Canada should be permitted to rely on the BIT for relief. The Tribunal found that the Respondent’s actions had been arbitrary, lacking in transparency and, by failing to process Air Canada’s requests for repatriation, had not performed to the Claimant’s legitimate expectations. This is another example of a Tribunal finding in favour of the investor on the basis that a state had failed to comply with established processes.
During the course of the proceedings, the Tribunal was called upon to consider an unusual issue arising out of the current political difficulties in Venezuela. The legitimacy of the incumbent President Maduro has been disputed since elections in 2019, with certain countries, including the USA and Canada, recognising opposition politician Juan Guaidó as president. A representative of Mr Guaidó claiming to be the attorney general of Venezuela claimed exclusive responsibility for the legal representation of the Venezuelan Republic and argued that the Tribunal should no longer grant standing to Venezuela’s current legal counsel, appointed by the Maduro Government.
The Tribunal rejected this argument and allowed Venezuela’s current legal counsel to continue to act and make submissions. This is consistent with decisions reached by other international tribunals where this issue has arisen.
However, the political situation does nevertheless have implications for the conduct of international arbitration proceedings. As part of its policy relating to Venezuela, the USA has imposed a stringent series of economic sanctions. Due to US sanctions, Venezuela’s quantum expert was unable to corroborate the contents of their report or be available for examination during the hearing. The Tribunal nevertheless considered the report, albeit with less weight, and rebuffed Air Canada’s attempt to exclude it. However, circumstances can easily be imagined in other cases where another Tribunal may consider it inappropriate to admit disputed forensic expertise where it cannot be tested at a hearing
Tribunals often have to balance the legislative power of states with the rights of investors when considering BIT’s, especially when politics threaten to disrupt the progress of arbitration proceedings. In this case, the Tribunal applied a purposive approach to the FET clause. The BIT was designed to protect investments and to ensure states comply with established processes on which investors rely.
The Tribunal therefore managed to arrive at a conclusive decision, in accordance with international law principles, despite having to navigate Venezuela’s political circumstances. The arbitrators focused their analysis primarily on BIT provisions. The arbitrators did not order Venezuela to change its legal counsel and Venezuela was permitted to rely on its quantum expert.
The arbitrators did not therefore permit proceedings to be substantially undermined by sanctions or other political factors. This shows the potential benefit to investors of relying on existing BIT’s. Arbitrators can issue procedural orders with the purpose of reducing the disruptive impact of political circumstances, enabling the arbitrators to focus primarily on treaty provisions. In this case, sanctions had little impact on the final outcome and the integrity of the arbitration process was maintained. It remains to be seen whether in future arbitrations if other Tribunals will apply a similar approach.
The Tribunal’s Award is dated 13 September 2021 and can be accessed here.
On Thursday, Goodwin Procter announced it had hired former Foley Hoag partner Heather Miles and former special counsel at Cooley, Alexander Rea, who have both joined Goodwin’s technology practice in New York. Miles represents technology, healthcare and life sciences clients on corporate matters, while Rea represents private companies and their investors on matters including M&A and equity and debt financings.
Former Manatt, Phelps & Phillips partner Adrianne Marshack has joined Goodwin's complex litigation and dispute resolution practice in Santa Monica. Marschack primarily focuses on complex commercial litigation and class action lawsuits, but also advises clients on employment issues, including wrongful termination and workplace discrimination.
This year, Goodwin Procter has added seven technology partners in New York and 15 other offices around the world. The global 50 law firm has 1,600 lawyers across the United States, Europe, and Asia.
