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Monthly Archives: November 2015

Judge’s Facebook Comments Leads to Reprimand


Judge’s Facebook Comments Leads to Reprimand

A senior judge in Minnesota who has has been on the bench for over 30 plus years has received a reprimand from the Minnesota Board on Judicial Standards this week. His reprimand arose from the publicly posted comments the judge made about several cases pending before him. To read the reprimand in full go here. Here is a sample of what the judge wrote.


Prosecutor Wants Judge Recused from all Criminal Cases because of Facebook Comments


Prosecutor Wants Judge Recused from all Criminal Cases because of Facebook Comments

This is the latest salvo in an ongoing dispute between Judge Olu Stevens and the Kentucky Prosecutor who represents the greater Louisville area, Tom Wine.  As some will recall, Judge Stevens dismissed an empanelled jury last year because it had no African-Americans.  The jury panel in that case had 41 people of whom only one was an African-American.  According to Judge Olu Stevens, “[t]here is not a single African-American on this jury and (the defendant) is an African-American man…I cannot in good conscious go forward with this jury.”  Currently, African-Americans make-up 21% of the population in Jefferson County.  This was the second time that Judge Stevens dismissed a jury due to a lack of diversity.

Not surprisingly, Wine responded to the judge’s actions with a petition to the Kentucky Supreme Court asking that court to determine whether Stevens has the authority to dismiss juries based on racial composition.  Rather than await the state court’s decision, it appears that the judge has taken to Facebook to voice his views on the subject.  According to the affidavit of the Commonwealth Prosecutor, Judge Stevens has made the following Facebook posts about the pending matter:

Going to the Kentucky Supreme Court to protect the right to impanel all-white juries is not where we need to be in 2015.

If people, particularly affected people, would stand up and call him [Wine] out, he would go right back in his corner

Do not sit silently. Stand up. Speak up.

History will unfavorably judge a prosecutor who loses a jury trial in which a black man is acquitted and then appeals the matter claiming his entitlement to an all white jury panel

We have a chance to prove the commonwealth is about progression and not regression

We have the opportunity to stand for inclusion and not exclusion.

At least initially, the Commonwealth Prosecutor was able to get the judge recused from two pending criminal cases because of the Facebook posts.  It remains to be seen whether the state high court will remove all pending criminal cases from the judge and or allow any state judge to dismiss a jury or jury panel because it lacks diversity.

I Swear! From Shoptalk to Social Media: The Top Ten National Labor Relations Board Profanity Cases

O' Brien

Christine Neylon O’Brien

I Swear! From Shoptalk to Social Media: The Top Ten National Labor Relations Board Profanity Cases


Waitresses at Hooters got into a swearing match in front of customers over a mandatory bikini competition that was rumored to be rigged. An off duty barista at a New York Starbucks used profanity in a heated conversation with a manager that also took place in the presence of customers. Employees at a Manhattan catering service complained to the director of banquet services about the hostile, degrading, and disrespectful treatment they received from managers. Then, just prior to a National Labor Relations Board (NLRB) election, servers were repeatedly told by their manager to spread out and stop talking to each other. One server posted profane remarks about the manager on his Facebook page while he was on break, including a plea to vote for the union. In other instances, employees profanely commented on social media about their boss’ ineptitude at tax withholding; locked out bargaining unit members made vulgar comments and gestures to those who crossed the picket line; and unionized employees were told not to wear buttons in the presence of customers that contained language that bordered on profanity. All these examples refer to recent unfair labor practice cases that were brought to the NLRB by employees or their unions when employees were terminated for their use of profanity while engaged in concerted activity that was otherwise protected by Section 7 of the National Labor Relations Act (NLRA).

This article curates and analyzes ten recent cases involving employee communication laced with profanity. It informs managers and employees of the rules that the NLRB is currently following in this area, and the key factors that the Board weighs when considering whether conduct loses NLRA protection. The paper summarizes these top ten cases in an informative table, and then outlines why the NLRB or an administrative law judge determined the conduct was protected by the NLRA, and, if so, whether that protection was lost because of the egregiousness of the employee’s misconduct. In many of these cases, the Board found employer rules relating to profanity were overbroad because they unduly infringed upon employees’ Section 7 right to communicate about wages, hours, working conditions or matters of mutual aid and support. Cases involving employee dishonesty during an employer investigation into profane or offensive conduct and/or racial or sexual harassment are compared, and important distinctions are made.

Social Media Attorney: McDonald’s

Job Title

Technology / Digital Attorney

Job Description The role will involve working with a global team of attorneys to support McDonald’s Global IT and Digital organizations with their (1) deployments of technologies into international markets and (2) procurement of technologies.
Responsibilities Responsibilities

Represent the Legal department on cross-functional project teams charged with procuring and deploying technology and digital initiatives. This requires the attorney to:

· Actively participate on project teams to ensure that the technologies are not only architected to be compliant with applicable laws, but also designed to reasonably minimize potential brand risks;

· Identify and understand the potential legal risks associated with each initiative, and engage domestic and international attorneys with subject matter expertise to address such risks;

· Act as the primary legal support for each project team, and facilitate and manage the participation of all attorneys required for the project;

· Draft, review, and negotiate all contracts with suppliers and other third parties and documentation (e.g., terms of use, data protection statement) necessary to enable the deployment; and

· Engage with and advise senior management charged with leading the project on legal and business issues.

Provide day-to-day legal and business advice to McDonald’s Global IT and Digital organizations. Such day-to-day advice includes collaborating with senior leadership of these organizations to develop corporate strategies addressing issues such as supplier management and information security and governance.
The attorney must have the ability to work independently and efficiently under time pressures and deadlines in a fast-paced demanding environment.

Minimum Requirements Required:

· J.D. degree and a license to practice law are required.

· 5+ years of experience.

· Experience with global technology and digital deployments, eCommerce, customer databases, mobile applications, cashless payment systems, and cloud hosting services is preferred.

· Knowledge of issues affecting technology and digital initiatives, including data privacy, protection and retention, cross-border data transfers, information security, employment, open source, E-discovery, intellectual property rights, and indemnities.

· Digital mind-set and understanding of social media.

· Corporate in-house experience within a global and/or franchised organization is preferred.

Ability to:

· Identify legal risks and issues, and provide advice to clients, on a broad range of technology and digital related initiatives and transactions;

· Develop innovative approaches to legal issues in support of strategic business initiatives and objectives;

· Participate effectively and constructively as a member of a team; be a strategic partner and trusted advisor for the business clients;

· Effectively communicate with and influence clients at all levels of the organization, including senior management; establish proactive relationships with business clients as well as other members of the legal organization globally;

· Engage strategically in risk assessment and mitigation; and

· Find practical solutions to business challenges.


Significant commercial contracts experience, including reviewing, drafting, negotiating and advising on sophisticated and complex contracts such as:

· Software licensing agreements (traditional and SaaS);

· Software/application development agreements;

· Cloud computing agreements;

· IT outsourcing agreements; hosting agreements;

· Hardware/middleware purchase agreements;

· Internet and mobile related agreements and policies;

· System implementation, deployment and integration agreements; and

· Services and consulting agreements.

“Likes” Are Protected Concerted Activity Says 2nd Circuit: Three D, LLC v. NLRB


“Likes” Are Protected Concerted Activity Says 2nd Circuit: Three D, LLC v. NLRB

The Second Circuit Court of Appeals recently affirmed a decision (Three D, LLC v. NLRB) by the NLRB that a Facebook “Like” is “Concerted Activity.”  For an in-depth discussion of this case and an exploration of the various ways the Like button can impact the law see “Liking” the Social Media Revolution.

Legal Editor-Sr. (Social Media)

Title: Legal Editor-Sr. (Social Media)
Location: Remote
Duration: 3+ months contract

Our client is looking for a temporary Commercial Attorney Editor with substantial experience in advising on and handling advertising and marketing matters to work on resources for our online services. The specialist contractor will:
Write, edit, and update commercial advertising, marketing and promotion resources in accordance with Practical Law writing style, including practice notes, checklists and standard documents, which address a broad range of advertising, marketing and promotion issues.
Be available to answer questions and perform research on discrete issues that arise in Practical Law’s final review of these resources.

Candidates should have at least the following skills and experience:

  • At least eight (8) years’ recent experience as an attorney in a law firm or as in-house counsel, advising on and handling a broad range of advertising, marketing and promotion matters, including regulatory compliance, digital marketing and advertising, advertising clearance, telemarketing law, social media, contests, sweepstakes and promotions, and drafting and negotiating marketing, advertising and promotion contracts.

  • Enthusiasm and ambition, with a desire to improve the efficiency of legal services.

  • A good understanding of the needs and priorities of law firm attorneys, in-house counsel and the legal market in general.

  • Strong communication skills, particularly given remote nature of position.

  • Strong work ethic and ability to meet deadlines.

  • Self-motivated and good at working independently.

Required experience:

  • Strong in digital marketing and advertising, advertising clearance, telemarketing law, social media: 8 years

Required license or certification:

  • bar admission in US

Required education:

  • Doctorate