During the first week of August, GEICO officially announced its shutdown of all California locations (Sacramento Bee). When the Sacramento Bee article was written, GEICO’s website listed some of the operating San Diego and Bay Area offices, but a week later, California was removed from the list of states to search for a local office. Not only are 2.18 million Californian GEICO customers affected, but hundreds of employees are left jobless. Why would the largest auto insurance company implement a mass in-person exodus from the most populated state in the country? This question and more are answered in this month’s topical post, with insight from Liability Insurance Expert and Experts.com Member, Ms. Jane Marie Downey, M.Ed, ARM.
GEICO is a private insurance company headquartered in Chevy Chase, Maryland. Since 1936, it has passed 17 million policies in force (active insurance policies) and has insured over 28 million vehicles (last checked in 2019) [GEICO]. GEICO has offered in-person services to consumers in every state until recently with the shutdown of locations in California. Former California Insurance Commissioner Dave Jones stated, “The benefits of having a physical location in California with actual offices and physical agents is that it’s easier for the Department of Insurance to make sure those individuals have a license and meet California’s very stringent standards – consumer protection standards for the sales of insurance,” (ABC10). From a customer perspective, visiting GEICO in person helps alleviate any miscommunication with agents and ensures they receive the correct coverage or assistance they need. Unfortunately, this is no longer an option for Golden State residents.
Corporations like Tesla and Oracle removing themselves from California has become a norm in recent years. In their new locations, they can now more cost-effectively serve their consumers. The following insight from Ms. Jane Marie Downey, M.Ed, ARM, and various news articles, explains GEICO’s California departure. According to Ms. Downey, “The cost of doing business in CA is high.” She also mentioned that the steep increase in personal injury and automobile liability insurance, “nuclear verdicts,” have made it difficult for insurance companies to price accurately. Verdicts can reach as high as $30 million or more. To add, “GEICO is owned by Warren Buffett’s Berkshire Hathaway, which reported a 53-percent drop in earnings for the first quarter of 2022. It reported earning $47 million in insurance underwriting in the first quarter of this year, compared to $764 million in the same quarter in 2021,” (The Epoch Times).
California’s state regulations seem to be the root of GEICO and other corporations’ removal from California or migration to another state. Steve Young, a lawyer for Independent Insurance Agents & Brokers of California, said, “There’s a very complicated insurance rating law that is in effect here that makes it very difficult for insurers to have confidence that they can get the rate that they need from an actuarial perspective to ride these risks going forward,” (ABC10). The article reported the agents were under a gag order, but one of them said GEICO had to lower costs on its own due to rate increase rejections by the Department of Insurance. Although it eradicated brick-and-mortar services to California customers, GEICO provides presently insured consumers with online options through its website and app. This might frustrate technologically unsavvy customers knowing in-person consulting is unavailable.
Customers are not the only party affected by this swift decision. Hundreds of owners and employees of all 38 GEICO offices in California experienced a massive layoff. These offices are independently owned, and the Sacramento Bee reported agents spent between $100,000 and $250,000 to open them. “Locally owned branch offices were told of the company’s decision in a two-minute zoom call,” (The Epoch Times). The same article explained one owner’s situation: he packed up his office after being open for a year and sought legal representation for the quick shutdown. There have not been any new articles on personal anecdotes or GEICO generally since the beginning of August. If further information is released, the blog will be updated.
NBCUniversal, LLC has made headlines once again, but this time, it is not to announce a new show or streaming service. On July 1st, 2022, the media conglomerate filed a lawsuit against Jay Kennette Media Group for trademark infringement of the fictional paper company, “Dunder Mifflin,” from the hit U.S. adaptation of The Office (DEADLINE). The suit was filed in the U.S. District Court for the Central District of California. As the lawsuit is in its inception details are limited. In this month’s blog post, readers can expect to find background information leading up to the filed lawsuit, explanations about trademarks and their significance, and insight from Trademark, Copyright, and Apparel Experts.com Member, Mr. Antonio R. Sarabia II.
From 2005-2013, the American version of The Office, starring Steve Carell, Jenna Fischer, and John Krasinski, chronicled the peculiarities and typical workday of office employees at Dunder Mifflin paper company. To say the show was successful is a gross understatement. According to The Washington Post, The Office received 42 Emmy nominations and won a total of 5 nominations during its nine seasons. It recently surpassed another successful NBC sitcom, Friends, for the most streamed show on Netflix in 2020. Given its impact on the public and pop culture, it was sensible for NBCUniversal to keep The Office in-house with the release of its subsidiary, Peacock TV, that same year. The network also attempted to register the trademark for the faux company name for merchandising and sales purposes, but because the Jay Kennette Media Group beat them to the punch in 2016, The U.S. Patent and Trademark Office denied NBCUniversal’s application.
Other than the situation on which this lawsuit is based, the Jay Kennette Media Group is known to register trademarks that belong to other companies and has thus garnered the reputation of an alleged “trademark squatter.” Mr. Sarabia defines a “trademark squatter” as “someone who takes the trademark of another and registers it before the owner does, usually with the intent to sell it back to the rightful owner.” Whether the media group planned to sell the Dunder Mifflin trademark back to NBCUniversal is unknown, but given the recent lawsuit filing, the outcome of who receives the fictional company’s trademark will now be decided by the judge. According to DEADLINE, “The lawsuit aims to end Jay Kennette Media’s use of the Dunder Mifflin name and destroy any remaining branded merchandise. The plaintiffs – NBCUniversal Media LLC, Universal Television LLC, and Universal Studios Licensing – also seek unspecified damages and any profits already derived from sales of the merchandise.” With the background information of this lawsuit in mind, let’s delve into how trademarks are licensed and their importance with further knowledge from Mr. Sarabia.
Q: What are the steps to registering a trademark?
Mr. Sarabia: First, file the application with the U.S. Patent and Trademark Office, then respond to any request for changes from them. In some cases, the U.S. Patent and Trademark Office will reject the application for conflict with a prior application or registration. Assuming that does not happen, next the application is published for opposition. When an application is published for opposition, anyone who believes the application conflicts with their right may oppose the application. That rarely happens. If there is no opposition, the application proceeds, and the U.S. Patent and Trademark Office issues a Notice of Allowance. If proof of use has already been filed, the application will proceed to registration. If proof of use has not been filed, the applicant has time to file that, but it must be done before the mark is registered.
Q: What is the benefit of registering a trademark?
Mr. Sarabia: A registered trademark has nationwide protection and improved damages in case a lawsuit is necessary.
Q: The Jay Kennentte Media Group has become known for being an alleged “trademark squatter.” How prevalent are “trademark squatters?”
Mr. Sarabia: Very common, though less likely in the U.S. than in other countries.
Q: How can businesses prevent being negatively impacted by “trademark squatters”?
Mr. Sarabia: Make sure that their marks are registered in each country in which they sell products or offer services and in those countries in which products are manufactured.
Q: NBCUniversal submitted their trademark application for the fictional paper company, Dunder Mifflin, several years after The Office ended. Is it normal for businesses to delay registering trademarks for products or names?
Mr. Sarabia: It is common, particularly in a situation in which the company is fictional. In other situations, there may be delays because the company may not consider how important trademarks are to its business, a mistake.
A special thank you to Trademark, Copyright, and Apparel Experts.com Member, Mr. Sarabia for graciously taking the time to participate in this month’s blog topic. This post will be updated once a settlement has been determined.
In the years since Experts.com launched, we have offered an expert witness location solution which reduces the costs of litigation. Our founder, Nabil Zumout, was deep into the Internet while practicing as law as an attorney in 1999. He was searching for an expert on a case and was using Google before Google was the cool 800-pound Gorilla of search engine advertising that it is today.
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Religious communities are one of many places which provide people a sense of belonging. Connecting with fellow congregants with like-minded beliefs brings comfort and safety. However, religious institutions are not exempt from exploiting, coercing, and manipulating devotees into unsavory demands. Experts.com Member and Psychiatry Expert, Dr. Mark I. Levy, MD, DLFAPA, shares insight about abuse, power, and institutional betrayal within religious groups.
Although abuse occurs in every religious institution and denomination, the most recent scandal involves the Southern Baptist Convention. According to AP News, the Southern Baptist Convention’s Executive Committee, along with other high-profile members, currently have a chance to acknowledge a scathing report regarding their lack of action toward allegations of sexual assault. For over two decades, survivors and involved members of the church received unsatisfactory responses to abuse, which included, “resistance, stonewalling, and even outright hostility from some within EC.” An investigation has been conducted and a report was released on Sunday, May 22nd, 2022.
After seven months, a lengthy 400-page report has now been published. It mentioned, “for many years, a few senior EC leaders, along with outside counsel, largely controlled the EC’s response to these reports of abuse…and were singularly focused on avoiding liability for the SBC.” This list was made public days after the investigative report’s release, which was the SBC’s effort to encourage national churches to be “proactive” in defending the vulnerable (FOX News). Ed Litton, Southern Baptist Convention’s President, stated he was “grieved to my core” for the survivors and urged churchgoers to “prepare to change the denomination’s culture and implement reforms,” (AP News). He also vowed to address the failures and the report’s findings during their 2022 national meeting in Anaheim, California on June 14th and 15th, 2022. While the body of the Convention will meet in Anaheim, several high-ranking Executive Committee members will not be attending, as they have relinquished their roles in the church.
The Southern Baptist Convention is not the only denomination to be accused or charged with sexual assault. A recent study by the University of Alberta was released in 2019 detailing patterns of sexual assault in religious and ideological groups. This includes the Catholic Church, Protestants, the Branch Davidians, Fundamentalist Latter-Day Saints, Hindu ashrams, and various cults. Along with academic studies, documentaries such as Leah Remini: Scientology and the Aftermath (Netflix), The Vow (HBO Max), and Keep Sweet: Pray and Obey (Netflix) also expose the coercive abuse that occurs in these groups.
Experts.com Member, Dr. Mark I. Levy, MD, DLFAPA, provides his contributions on the matter. When asked about grooming minors and sexual assault against adults within religious groups, Dr. Levy presents a thought-provoking paradox. He states:
“When humans identify with codes of ethics, which all religions espouse, they put themselves at risk of their own fallible humanity. In general, there’s always this perceived idealization of the role of the person in a morally heightened position and the fact that life is imperfect.”
The discrepancy between the revered status of religious leaders, along with the virtuous sermons they preach, and the egregiously immoral acts committed, is the shock value associated with deplorable situations like the ongoing Southern Baptist Convention scandal. Sexual assault and rape are heinous crimes altogether, but the inconsistency also explains why religious sexual assault contentions make more news headlines than workplace, university, or random abuse cases.
Dr. Levy provides four reasons why sexual abuse continues in religious groups:
Authority: The sexual abuse against minors and adults in religious environments has more of an emphasis on a person’s position of authority rather than the ideology itself. “Authority is a critical component to this because a person has to be in a role of trust and respect, which increases the chance of being able to abuse minors. It disarms them when the person is recognized as the leader because they are more prone to trust and believe them.” In communities like churches, repeat abusers in authoritative roles are not quick and brash in pursuing their ulterior motives. Due to their constant access to believers, they meticulously and strategically develop a seemingly benign relationship with their victims to ultimately exploit them at a given opportunity.
Power: If authority is the vehicle for abusers, then power, granted by their authority, is the fuel that perpetuates these atrocities. “Sexual abuse is always about power. Sexual abuse of children, which clearly uses that, is also about the sexual gratification of the adult abuser’s needs. They’re peculiar because the sexual interest is focused on minors because of the abuser’s own psychopathology.” Defenders may say it is justified by culture, tradition, and love, but it is illegal under the law because children are not mature enough to give consent.
Structure of the Group: “There are particular problems with institutions dominated by men, which are virtually all major religions. One wonders if the leaders of the Catholic Church were female…, whether there would be the same sexual abuse scandal.” This is not to say that women cannot abuse others. However, sometimes the camaraderie within fraternal groups is based on a “boys will be boys” mentality, which tends to excuse abusive behaviors and disregard the damage done to victims.
Structure of Belief System: “I think that sometimes within religious belief systems where sin is a prominent concept and confession of sins leads to forgiveness, the psychological damage done, and not to mention the legality of the sin, is often overlooked because it is forgiven in a religious concept.” To reverse this, victims subject themselves to acts they would not do otherwise to avoid sin, reach salvation, or to meet the expectations of the congregation. When church leaders manipulate ideology for their own selfish satisfaction, they violate their congregant’s spiritual, moral, and physical vulnerabilities.
As stated above, offenders in authoritative positions like priests or teachers are typically repeating abusers. Repeat abusers generally commit certain behaviors that allude to deviant motives. Specifically, regarding the adult sexual assault of minors, Dr. Levy has named a few warning signs that can potentially mitigate further abusive situations when identified. These include solely befriending single moms, children having an “adult friend,” overstepping boundaries (children sitting on laps or being invited out to dinner alone), and becoming an “adopted uncle” of the family. Some of these behaviors may not directly indicate the person is an abuser, but all four certainly pose a concern.
All man-made products are subject to trial and error during the development process. In some cases, problems occur once a good has been manufactured, shipped, and sold to customers. Recently, two major automotive companies, Ferrari and Volkswagen, recalled thousands of their sports models worldwide. This month’s blog post will explain why the recalls occurred with insight from Experts.com member and Forensic Engineering expert witness Tarek Omar, Ph.D.
Ferrari, the Italian luxury sports car manufacturer, announced its recall of 2,222 cars in China, which will start on May 30th, 2022. According to China’s market regulator, the defect lies in the automotive’s braking system (CNBC). Ferrari confirmed the cause of the said defect, which is the improper venting of the brake reservoir fluid cap. “The safety and wellbeing of our clients is our priority. We operate according to stringent safety and security guidelines to ensure the right systems and procedures are in place at all times,” stated Ferrari. The retracted cars include the 458 Italia, 458 Speciale, 458 Speciale A, 458 Spider, 488 GTB, 488 Spider series models, and cars imported between March 2010 to March 2019.
In the United States and Canada, Volkswagen has recalled 246,000 Atlas and Atlas Cross Sport SUVs (CNBC). The reported issue stems from wiring issues that affect the cars’ airbags, brakes, and windows. The National Highway Traffic Safety Administration stated the wiring issue could lead to the airbags functioning “later than designed,” which leaves consumers susceptible to harm. Volkswagen notified owners and dealers through mail on May 10th, 2022, of the following vehicles subject to the recall: 2019 – 2023 Volkswagen Atlas and 2020-2023 Volkswagen Atlas Cross Sport. Given the provided information, Experts.com member and Forensic Engineering expert, Dr. Omar, has shared his insight on the topic.
Question: Two major car companies, Ferrari and Volkswagen, have recently recalled some of their models. How often do automotive recalls occur?
Dr. Omar: Automotive recalls are very common. There could be up to 50 million cars with a new recalled issue in any given year. Some vehicles may have multiple recalls occurring at different times. A telling statistic is the recall rate which signifies the number of recalled vehicles per 1,000 sold. A study by iSeeCars.com that tracked recalls from January 1985 to September 2016 showed that for the 427,971,556 cars sold during this period, 527,406,263 were recalled yielding a recall rate of 1,115 per 1,000 cars sold. Porsche ranked 1st with 531 per 1,000 and Volkswagen 18th with 1,805. By law, safety defects in vehicles up to 15 years old must be included in recalls.
Question: What is the most common cause of automotive recalls?
Dr. Omar: With the technological advancements in vehicles today, sensors and software are prone to faults and will probably lead the list of common recalls. Traditional safety systems such as airbags, seatbelt tensioners, and ABS braking, as well as modern driver-assist systems such as lane departure, blind spot, forward collision, and rear cross-traffic warnings, rely heavily on properly functioning sensors, computers, and software. Traditional mechanical and electrical issues will of course continue to appear in faulty wiring, fuel lines, brake lines, throttle pedals, and engines, to name a few.
Question: Are recalls usually tied to something that may cause injury? Or are there other reasons for an automotive recall?
Dr. Omar: Recalls could be initiated for any reason, but the most prevalent are safety-related. Whether initiated by the automaker or by the government regulators, the recall is aimed at correcting a defect due to vehicle design, manufacturing, or supply chain issues. Safety recalls are generally for defects that could lead to injury or death. Non-safety recalls might be due to emissions issues, such as the Volkswagen Dieselgate scandal in 2015, and are initiated by the Environmental Protection Agency (EPA). A defect in a vehicle is not always repaired through a recall. Manufacturers often issue Technical Service Bulletins, and the dealers or repair shops will typically repair the defect during routine maintenance visits. However, for safety and environmental defects, a recall must be issued.
Question: Is there a regulatory process to follow to institute a recall?
Dr. Omar: Yes, there is. The National Highway Safety Administration (NHTSA) is tasked and funded by Congress to oversee vehicle safety and enforce the United States Code for Motor Vehicle Safety [Title 49, Chapter 301]. While NHTSA has the authority to issue recalls, most are actually initiated by automakers. The EPA has a similar regulatory framework for emissions-related recalls.
Question: What is the average time frame for suppliers and manufacturers to repair the faults for defective cars?
Dr. Omar: It is difficult to pinpoint an average time. Once a recall is issued the owners are notified by mail that a defect has been identified. It will explain the nature of the defect and provide instructions for getting the defect repaired either by the authorized service center or by software download. The notice will also explain whether the vehicle can be driven prior to the repair or if are any instructions in terms of parking the vehicle (in case of fire due to fuel leaks, battery charging, etc.). Some recall notices may not indicate the proposed solution, and it might take the automaker months to determine how it will repair the defect. Given that notices may not reach the current owners of a recalled vehicle, it may take years for an owner to realize that there is a recall and to get it performed. Owners should frequently check the NHTSA website for ongoing recalls. It should be noted that while repairing the issue is the most common remedy, other options include replacing a defective part, offering a refund, or even repurchasing the vehicle.
Question: In the Ferrari article, CNBC stated that the luxury sports car brand recalled vehicles from March 2010 to March 2019. Why do you think Ferrari waited so long to issue the recall?
Dr. Omar: Ferrari is a low-volume manufacturer, which might affect the process. In general, automakers rely on service centers’ repair records to identify and address potential defects. Typical car models are sold in large volumes, on the order of 100,000 per year, and often substantially more. Some parts are used across models, and that number could be as many as a million or multi-million cars. In the case of Ferrari, the total production is less than 10,000 cars per year and coupled with the fact that they are typically not driven a lot of miles a year, means that the problem reporting will take time. It is very likely that Ferrari did not become fully aware of the issue for several years after the 2010 cars began to sell, and initially offered free repairs under the vehicle warranty. Typically, once the defect is identified the company will analyze manufacturing records to determine how many of the affected parts are in production, was there a specific batch from the supplier, or any other analytics that help bound the issue. By law, the automaker must report the problem and issue a recall immediately once a safety problem is identified, even if they are still investigating the problem and solution.
Question: How difficult is it to determine a faulty product once manufacturing and sales begin?
Dr. Omar: There are several ways that a fault is identified. First and foremost, through reported problems either from crash data or maintenance service reports. Customer reporting is another factor, and if not addressed by the manufacturer, NHTSA’s Office of Defects Investigations will open an investigation into the matter. Consumer advocacy groups and media often play a role as well in applying pressure on the manufacturer to address the issue.
Question: Both cars recalled sports models. Are sports cars more complex design-wise than other types of vehicles?
Dr. Omar: Not particularly. Sports cars tend to have higher performance components such as engines, transmissions, brake systems, and suspensions, which, unlike regular vehicles, are sometimes pushed to their limit. Given the number of ongoing defect recalls, sports cars make up a small percentage.
On March 21st, 2022, a Boeing 737 from China Eastern Airlines seating 132 passengers and crew members nosedived into the mountains of China’s Guangxi region. Lamentably, there were no survivors. CNN reported Flight MU5735 was a normal flight that departed from Kunming en route to Guangzhou in South China. The anomaly that has various aviation experts, as well as public agencies perplexed, is the plane’s nosedive position and the rate at which it situated itself into the nosedive. The accident is currently being investigated by China Eastern Airlines, the Civil Aviation Administration of China (CAAC), Boeing, CFM (engine manufacturer), and the U.S. Federal Aviation Administration. Experts.com Member and Aviation Expert, Captain Kit Darby, offers insight into this bizarre and unfortunate aircraft accident.
It is important to provide pertinent information regarding the accident before proceeding with Mr. Darby’s contribution. Airplanes usually begin to gradually descend toward their destination at 29,000 ft. Passengers are supposed to experience minimal turbulence at the stage of the flight, however, the same could not be said for Flight MU5735. According to SFGATE, “the plane’s dive appeared to have halted for about 10 seconds and it climbed briefly, adding an unusual twist to the scenario.” However, the Flightradar24 data track, which derives its information from radio transmissions, reported the plane plunged nearly 26,000 feet within a minute and 35 seconds. In general, it is difficult to place a plane into a nosedive position. Given that Flight MU5735 passed all pre-flight checks, the reality of the aircraft nosediving should not have happened. A second black box – a device that records the condition and performance of planes in midair – was found near the crash site on March 27th, 2022 (ABC7 Chicago). However, due to the mountain region’s muddy terrain, the black box was damaged with possible repair remaining questionable. Luckily, the cockpit voice recorder was located two days later and is currently being analyzed in Beijing with the help of the U.S. National Transportation Safety Board (NTSB) [Reuters]. Providing insight on the matter is Capt. Kit Darby, Aviation Expert, and Experts.com Member:
Question: How often do plane crashes occur?
Capt. Darby: Very rare. Driving a car is much more dangerous than flying in a commercial aircraft.
This was a scheduled air carrier. This is the safest group of operators by far with only .132 accidents per 100,000 flight hours.
The aircraft was at a point in the flight where it would normally start a descent for landing. It appears to have started down normally just before it began its dive.
Question: What is the most common cause of plane incidents?
Capt. Darby: (Photo 4)
Question: According to SFGATE, it is difficult for planes to position into a nosedive, which is why this particular crash is odd. Considering the aircraft passed pre-flight checks, what would the plane have to undergo to be situated into a nosedive?
Capt. Darby: Aircrafts are what is called “dynamically stable.” If they are displaced from their normal flying state, they tend to return to their original conditions. If you nose down an aircraft, it speeds up, and the increased speed makes the plane’s nose return to its original level of condition. You would have to push the aircraft’s nose down and then hold it down to sustain a dive as speed increases.
Alternatively, something could break that forces the nose down and hold it there, but I have never seen this happen in my 24,000 hours in the aircraft and 7,000 hours teaching in simulators. Possible, but unlikely. Additionally, the hold could force the aircraft’s nose down and hold it there.
Question: ABC7 News Chicago reported the second black box from the China Eastern Boeing 737 was found. How vital are black boxes for flight investigations?
Capt. Darby: They are key. One records what the aircraft does and the other records the communications between the pilots and the air traffic controllers. Just a note that the “black boxes” are actually bright orange to help locate them in a crash. The flight recorder records 1,000 plus of the aircraft parameters. Speed, heading, altitude, flight controls, gear, flaps, time – almost everything. The plane also has voice recorders that record the radio and intercom communications.
Question: How much of the investigation is conducted by locating debris on the ground vs. reviewing the black box recording?
Capt. Darby: In a high-speed crash like this, there is very little that can be learned from the crash site due to the amount of damage done from the high sped aircraft hitting the ground at a steep angle. In this case, the crash was so extreme that the black boxes may be damaged beyond repair and therefore not a useful tool.
As of April 11th, 2022, the investigation is still ongoing. However, rumors regarding the cause of Flight MU5735’s nosedive have been circulating. Online gossip’s latest conjecture is the co-pilot might be culpable for the crash (Global Times). Since official conclusions are yet to be discovered and announced, questionable rumors are to be taken with a grain of salt. This post will be updated once the Civil Aviation Administration of China (CAAC) releases a statement.
It appears we’re poised to see some changes to Federal Rule of Evidence section 702 for the first time since the 2000 amendments.
In an excellent article published by Butler Weihmuller Katz Craig LLP, attorney Scott Hefner provided an excellent history of FRE 702 and a summary of the proposed amendments which if adopted by the Supreme Court, will go into effect in 2023.
Mr. Hefner provided an outstanding summary of the Daubert Standard and its codification and I encourage you to read his article for further depth. I just wanted to provide the existing rule and the proposed changes for your review, so that you and your expert witness practice can be prepared for the possible changes to FRE 702.
Existing Rule 702:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
a. the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
b. the testimony is based on sufficient facts or data;
c. the testimony is the product of reliable principles and methods; and
d. the expert has reliably applied the principles and methods to the facts of the case.
Proposed Rule 702:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent has demonstrated by a preponderance of the evidence that:
a. the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
b. the testimony is based on sufficient facts or data;
c. the testimony is the product of reliable principles and methods; and
d. expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
For your convenience, I’ve bolded the changes in the proposed rule. In my reading, the only real substantive change is “the proponent has demonstrated by a preponderance of the evidence…” This is the standard that has always applied, but the advisory committee decided they needed to clarify the standard. Mr. Hefner’s article notes that the committee included the standard to “dispel the notion that expert testimony is presumed to be admissible.” In the years I’ve been working in the expert witness field, I’ve never known this to be presumed. In fact, since law school (i.e. as long as I can remember), the rule has always been that the court serves as the gatekeeper for allowing expert testimony.
Now, I would love feedback from readers on the other “substantive” change to section 702(d). When I look at the existing subsection and the proposed changes, it is difficult to identify how this will actually change anything in practice.
In fact, it seems Mr. Hefner and I are in full agreement on this subsection change. He even mentions, “The practical implications of the amendments remain up for debate.” To take it a step further, he quotes the Federal Magistrate Judges Association as viewing the proposal as not making changes at all but rather “largely clarifying existing practice.”
What do you think?
Do you think this proposal will have any substantive or practical effects? Let us know what you think in the comments or drop us an email at firstname.lastname@example.org.
After nearly a decade of deep-seated tension between Russia and Ukraine, Russia commenced its invasion on February 24th, 2022. According to the Wall Street Journal, the attack is “President Vladimir Putin’s most aggressive move yet to redraw the boundaries of the former Soviet Union since the end of the Cold War more than 30 years ago.” During the last two weeks, Russia has strategically strengthened its forces in four major Ukrainian cities: Kharkiv, Mariupol, Kherson, and the capital of Kyiv. Putin has also threatened Volodymyr Zelensky, Ukraine’s President, with annexation. Due to the bombings, air raids, and the Russian army pillaging the country, Ukrainian citizens are fleeing their homes seeking refuge in Poland, Hungary, Slovakia, Romania, and Moldova. NATO members have responded to this unjustified attack by imposing financial and trade sanctions against Russia. This blog post will delve into the purpose, logistics, and violation penalties of trade sanctions. Insight has been provided by Experts.com Members and International Trade Experts, Jo-Anne Daniels and Rosemary Coates.
When warfare is mentioned, people tend to imagine soldiers fighting on the battlefield or the vast array of weaponry used to defeat enemies. As the world continues to develop, the modern concept of warfare seems to become more complex and multifaceted than in previous years. Rather than physically attacking countries, world leaders can choose to affect their enemy’s economy and trade deals through sanctions. Regarding the United States, Ms. Coates notes, “Sanctions are often used when America chooses to protect sensitive technology or punish a country for violating certain laws… When sanctions are applied, licenses for export are denied to the sanctioned country and the goods may not be shipped there.” In this case, Russia’s attack on Ukraine has prompted President Biden and other international officials to order trade sanctions to denounce Putin and cripple his economy to such an extent he can no longer continue his attack.
A couple reasons explain why various NATO members like the United States, Germany, and the United Kingdom have imposed sanctions rather than use military force, even to their own disadvantage. The first reason is Russia’s influence on European trade. A statistic from the European Commission states, “The EU is Russia’s biggest trade partner, accounting for 37.3% of the country’s total trade in goods with the world in 2020.” To add, Russia accounts for 26% of the EU’s oil imports and 40% of the EU’s gas imports. A physically combative response to the invasion would be potentially disastrous considering Russia’s nuclear capacity. Sanctions are the lesser of two evils because Europe relies on Russia’s export of oil and gas. They have chosen to endure financial damage over a possible bloody war. Although the United States is not heavily reliant on Russia for trade, it has followed suit by implementing trade sanctions. Ms. Coates stated, “all trade with Russia (except food and medical supplies) is now stopped.”
Another explanation centers around Ukraine’s relationship with NATO. The North Atlantic Council acknowledged Ukraine as an Enhanced Opportunities Partner on June 12th, 2020 (NATO). Since Ukraine is a partner and not an actual member, NATO’s Collective Defense pledge, specifically Article 5 of the Washington Treaty stating “an attack against one Ally is considered an attack against all Allies,” is an inapplicable solution to the country’s plight (Washington Post). Given the Russian government’s unpredictable nature, the possibility of Article 5 being invoked will not be discounted since multiple NATO allies border both Russia and Ukraine (ABC News).
The repercussions of the Kremlin’s actions have significantly impacted the country’s economy and lifestyle to their detriment, alluding to these sanctions’ effectiveness. These sanctions catalyzed a mass exodus of multi-billion-dollar companies from Russia. These corporations include but are certainly not limited to American Airlines, General Motors, L’Oréal, Shell, John Deere, Goldman Sachs, McDonald’s, Starbucks, PepsiCo, Airbnb, Marriott International, DHL, Netflix, The Walt Disney Co., Mastercard, Pfizer, Deloitte, Amazon, Apple, and even Google (NBC News). Russian athletes are also affected by Putin’s decision to invade Ukraine. Professional tennis player, Daniil Medvedev, currently ranked No. 2 by the Association of Tennis Professionals (ATP), may have to condemn President Putin if he wants to participate in Wimbledon (CNN). Another example is Nikita Mazepin’s firing from the Formula 1 racing lineup due to his father’s connections to the Russian government (Washington Post). Various outlets have reported Russia’s occurring financial losses will take decades to recover. “It’s pretty clear that Russia will become poorer and more technologically backward, the choices for its citizens will be radically diminished and for many, many years to come,” a quote from The Hill. The Russian citizens suffer different consequences because of Putin’s actions. The hope is that they put pressure on Putin, so he decides to halt his malicious efforts to usurp Ukraine. However, that is not an easy feat in a totalitarian society. Al Jazeera confirmed Putin had arrested more than 4,300 people at Russia-wide anti-war protests. For now, sanctions will continue to be issued by the international community.
Two government agencies are responsible for establishing sanctions in the United States. The first is the Office of Foreign Assets Control of the U.S. Department of the Treasury (OFAC). OFAC deals with the authorization of economic and trade sanctions related to national security and foreign policy. The agency mainly targets any entity with a motive to antagonize the United States. OFAC releases an account of Specially Designated Nationals (SDNs) when a sanction is issued. Ms. Daniels explains SDNs are “companies owned or controlled by, or acting for or on behalf of, targeted countries.” Non-country-specific parties like narcotic traffickers and terrorists are also included in the report. For example, since Biden ordered sanctions against Russian banks and oligarchs on February 23rd, 2022, the assets of said banks and oligarchs are blocked. Any U.S. company that willingly or inadvertently conducts business with sanctioned entities will receive penalties, which will be explained in detail later in the post.
The second agency is the U.S. Department of Commerce & Bureau of Industry and Security (BIS). BIS manages U.S. export control policies for three categories: software, technology, and dual-use commodities (i.e., global positioning satellites, missiles, thermal imaging, etc.). According to Ms. Coates, “the export of technology or military items require more formal individual licenses.” As an agency also allowed to administer sanctions, BIS also releases a Consolidated Screening List (CSL) compiled of parties. The U.S. Government holds restrictions on specific exports, re-exports, and transmission of items. Ms. Daniels mentioned the BIS simultaneously issued sanctions against Russia and Belarus, allied with Russia, under the Export Administration Regulations (EAR) and licensing policies to defend U.S. national security. “Furthermore, the new BIS policy regarding the export, re-export, or transfer (in-country) of items that require a license for Russia or Belarus is under a policy of denial with certain limited exceptions. This means that if the export license is denied, the company must cease exporting its products to those countries,” Ms. Daniels stated. Although there are two agencies responsible for establishing sanctions, a third party wields this same power.
As previously mentioned, the President of the United States can also order sanctions against threatening companies, individuals, and countries. If sanctions are summoned through Executive Orders, they are established immediately. Otherwise, there will be a pause. For example, an Executive Order was made on March 8th, 2020, which banned both imports and investments with Russia. Because it continued to sabotage Ukraine’s sovereignty, the United States prohibited products such as “crude oil, petroleum fuels, oils, and products of their distillation, liquified natural gas, coal, and coal product of Russian Federation origin,” said Ms. Daniels. She adds that any written contract or agreements submitted before March 8th, 2022, will be authorized through 12:01 A.M. Eastern Daylight Time on April 22nd, 2022. According to Ms. Daniels, “The General License is available up to April 22nd, 2022, and then the Executive Order issued March 8th, 2022, takes full effect.” With the continuing invasion, NATO countries will issue sanctions to limit Putin’s efforts in undermining Ukraine’s independence.
Companies that violate OFAC and BIS regulations can be subject to civil and criminal punishment. These penalties range from paying hefty fines to serving jail time. Ms. Daniels provided examples of two different companies that have broken regulation policies for both agencies:
OFAC: Pennsylvania-based software company, SAP, paid $2,132,174 as a settlement for potential civil liability for 190 OFAC violations. The company was exporting software to Iran, a U.S.-sanctioned country.
BIS: In 2014, the Virginia-based business, Patriot 3 Inc., traded maritime jet-boots to the Russian Government Federal Guard Service without an export license. Last year, BIS charged the company for violating this rule of the Export Administration Regulations (EAR). Patriot 3 Inc. agreed to pay $200,000 as a penalty. If Patriot 3 Inc. is untimely with its settlement, the BIS will invalidate its export privileges for two years.
To avoid unintentionally breaking the law, both agencies implore businesses to be vigilant of export regulations, entities classified as SDNs, and parties on the CSL.
The full extent of economic and trade sanctions against Russia are yet to be seen. However devasting they may be, for Russia and its population, does not compare with the death and destruction that has already occurred in Ukraine. A special thank you to International Trade Experts, Jo-Anne Daniels, and Rosemary Coates for their contribution to Experts.com’s latest blog post.
It is indisputable that COVID-19 has inflicted its wrath on the United States. Americans have been impacted in ways never experienced before, pivoting from variant to variant while adjusting to ever-evolving public health guidelines from the CDC and other governing bodies. To boot, joblessness has skyrocketed, and inflation is at an almost forty-year high at seven percent. In fact, COVID has affected nearly every aspect of our lives.
Despite the daunting cons, there seems to be a light at the end of this dark two-year tunnel. The opening of concerts, sporting events, playhouses, and other in-person entertainment sites brings hope for a “new normal.” Fans around the country are getting ready to celebrate the biggest game in sports, the Super Bowl. Not just football anymore, the highly anticipated Super Bowl has become unmatched in football strategy, mid-show entertainment, and must-see sponsorships. With the help of Experts.com Member, Dr. Larry Chiagouris, Professor of Marketing, Lubin School of Business, Pace University, this blog will discuss COVID’s impact on the marketing industry and the changes, if any, fans can expect during Sunday’s game.
As a Professor of Marketing, Dr. Chiagouris is aware of the ever-changing shifts in messaging and methods businesses implement. During the pandemic, he noticed the most significant change in business-to-business (B2B) marketing. “For B2B, video sales presentations have become the norm to limit the travel expenses and exposure to COVID-19. What we are learning is that these presentations can be effective, but many marketers are still learning how to more effectively use remote sales tools. Business sales professionals have not yet perfected their game at using virtual presentations effectively.” Visual content is crucial for compelling pitches, negotiations, and overall communication when conducting business remotely. Dr. Chiagouris suggests marketing strategists direct more attention to developing high-quality content and graphics.
For business-to-consumer (B2C) marketing, branding professionals are responsible for capturing consumers’ attention and persuading them to purchase a company’s goods and services in digital and physical spaces. Dr. Chiagouris explains, “Marketers need to better understand the opportunity to reach consumers at home during the day. Because so many white-collar workers are now working from home, daytime television has become a much more popular and effective tool to reach consumers. Particularly moms and dads who are home with children and can be more easily reached during the day than prior to the pandemic.” He suspects two factors will influence marketing this year, more people than ever are working from home, and they care about their safety and security. Since national crime rates continue to climb, Dr. Chiagouris suggests that companies selling security-related products like home-alarm systems and front-door camera apps take advantage of the demand and the number of consumers constantly looking at their screens. Online delivery services will also be in high demand this year. Amazon, Walmart, and Instacart are a click away from all household needs, and Uber Eats, DoorDash, and Grubhub are not far behind with whatever suits one’s palette. Social distancing and integrating the work-from-home lifestyle has required marketers to reach a new level of innovative thinking for campaigns, more like those aired during the Super Bowl.
When the first Super Bowl occurred in 1967, it revolved around the game, the calls, and which team reigned supreme (the Green Bay Packers beat the Kansas City Chiefs 35-10). It was not until 1984 that the most significant event of the year became known for more than just an old-fashioned game of American football. Apple’s “1984” themed commercial announcing their Macintosh Computer was the Super Bowl advertisement that started the trend of “high-end” commercials fans know and love today. According to Business Insider, “Steve Jobs wanted an ad to announce the advent of Macintosh that would stop the world in its tracks.” Apple’s commercial was so successful that it made the Super Bowl the Super Bowl of Advertising from that year forward. Since then, there have been record-breaking ad costs from sponsors to out-perform their competitors year after year. Memorable commercials from Super Bowl LV include State Farm’s “Drake from State Farm,” M&M’s “Come Together,” and Uber Eats “Wayne’s World & Cardi B’s Shameless Manipulation.” An article from Variety stated last year’s Super Bowl produced approximately $545 million in in-game advertising. It is yet to be determined whether last year’s record-breaking cost will be surpassed on Sunday, but the prediction that it can is plausible for two reasons.
According to Statista, during the Super Bowl, there has been a significant increase in 30-second TV advertisements from 2002 to 2021. Because it is one of the most viewed broadcasts annually, sponsors will not hesitate to pay top dollar for airtime. From the statistics, it is inferred that the total cost of in-game advertising would also increase. If this trend continues, Super Bowl LVI is set to surpass last year’s in-game advertising record.
Another component to consider regarding the Super Bowl commercials is the element of surprise. Dr. Chiagouris states that audiences, “Want to see something that they have not seen before. Commercials aired during the Super Bowl which look and feel like all other pre-game spots will not attract the attention needed, given the high cost of commercial time during the Super Bowl. More out-of-the-box thinking and creativity is needed.” These commercials are the most anticipated ads of the year. Instead of turning the channel, people anxiously wait for each new ad. Sponsors realize the more creative the ad, the more revenue for the company. The commercial content Super Bowl sponsors will adopt this year remains to be seen, but it is safe to assume they will not be COVID-19 related. “I think that consumers are fatigued regarding the COVID-19 pandemic and are ready and willing to turn the page,” said Dr. Chiagouris. As vaccines are administered, and businesses are opening again, including the Super Bowl itself, normalcy is reinstated into daily life. Super Bowl Sunday has always been a day to escape, indulge, and engage in friendly competition. COVID-related commercials would perpetuate the doom and gloom Americans are all too familiar with after two years. As Dr. Chiagouris said, sponsors would be wise to keep it lighthearted. The Super Bowl LVI: Cincinnati Bengals vs. Los Angeles Rams airs on Sunday, February 13th, 2022, at Sofi Stadium in Inglewood, California.
On October 21st, 2021, filming his latest movie, Rust, Alec Baldwin fired a prop gun containing live ammunition, unbeknownst to him, which ended Director of Photography Halyna Hutchins’s life and injured Director Joel Souza. A Santa Fe Sheriff’s Office spokesperson claimed a search warrant was issued, and the investigation is ongoing. On the day of the event, Balwin published a statement expressing his grief and disbelief over the situation. Although fully cooperating with the police, on December 2nd, 2021, he revealed in an interview with ABC News’ George Stephanopoulos, “Someone is responsible for what happened, and I can’t say who that is, but I know it’s not me.” Considering how identical incidents have occurred in the past, like the passing of Bruce Lee’s son, Brandon Lee, this devastating accident raises questions about firearm safety protocols within the entertainment industry and perhaps more suitable working conditions for members of the International Alliance of Theatrical Stage Employees (IATSE). This blog post will address these issues with insight from Expert.com Member and Crime Lab Ballistics Expert, Mr. Francis T. “Jay” Jarvis.
The sequence of events leading up to the accidental death of Halyna Hutchins involved three people. According to Fox News, “Armorer Hannah Gutierrez Reed placed the prop gun outside of the church set location on a cart with other prop guns due to the coronavirus restrictions. The next person to handle it was assistant Director Dave Halls, who handed it off to Baldwin, announcing that it was a “cold gun,” a term used to indicate to those on-set that the firearm was not loaded and therefore safe to handle.” The article also highlighted how Director Joel Souza was confused about the presence of ammunition on set in the first place. According to Mr. Jarvis, “An armorer or a movie production would be responsible to make sure no live ammunition is permitted on-set, only blanks. It should be very easy to tell the difference between the two types of ammunition.” Unfortunately, there were existing gun safety problems for the Rust crew even before the fatal tragedy.
(Photo Credit: ABC News)
According to the LA Times, safety regulations were not thoroughly enforced on set. Before the significant incident resulting in Hutchins’ death, Baldwin’s stunt-double fired two rounds by mistake after being notified the gun lacked bullets. A witness told the Times, “There should have been an investigation into what happened. There were no safety meetings. There was no assurance that it wouldn’t happen again. All they wanted to do was rush, rush, rush.” Another event that occurred prior to Baldwin’s misfire involved a cinematographer and various camera crew members protesting against their working conditions by walking off the set. “The camera operators and their assistants were frustrated by the conditions surrounding the low-budget film, including complaints about long hours, long commutes, and waiting for their paychecks….,” a statement from the Times. Rust Movie Productions reassured the public that safety is the utmost priority. Although they were unaware of formal complaints, internal investigations with the Santa Fe Police Department have already begun, according to upper management.
On December 16th, 2021, Detective Alexandria Hancock obtained a warrant to search Baldwin’s cellphone. Three weeks have passed, and Baldwin has yet to comply, inconsistent with his original promise to cooperate with Santa Fe Police. According to New York Times, he filmed a video of himself and posted it on Instagram on January 8th, 2022, stating, “Someone from another state can’t come to you and say, ‘Give me your phone. They can’t just go through your phone and take, you know, your photos or your love letters to your wife or what have you.’” His legal team speculates two reasons for Baldwin’s lack of cooperation. He may be worried about possible incriminating evidence, or he wants his conversations to stay private (New York Post). The Santa Fe Police Department is now working with the Suffolk County Sheriff’s Office in New York to retrieve Baldwin’s cellphone from his residence.
Mr. Jarvis explains the root of this preventable tragedy stems from inadequate safety measures for crew members and cast. He adds, “It sounds like a training issue, not a budget issue. There is no cost involved in following the number one safety rule as it applies to firearms. No live ammunition on the set. Teach people the difference between live ammunition and blanks. Teach people how to check a firearm to see if it is loaded.” As the investigation continues, only time will tell who is responsible for this tragedy. What is certain is the production company must ensure suitable working conditions for all cast and crew members, including the armorer, whose job is to manage all gun props diligently. However, the number one safety rule Jarvis references, the measure that would have prevented protests, injuries, and the loss of an innocent person’s life, is to “NEVER point a gun at anyone unless you intend to shoot them. Even if the gun is safe, you should NEVER do this.”
How did the Astroworld Festival go from lively and jubilant to mass casualty event? We reached out to a security expert witness to help us understand security issues for concerts and other major events.
Last week, I began preparing to write this post involving nine individuals who attended the Astroworld Festival and lost their lives in the crush of a surging wave of festival-goers. It is not an easy topic to write about, as I want to be cognizant of the loss of life and resulting trauma experienced by family and friends. Sadly, this morning, we learned of a tenth death related to the disaster. CNNreports that a 9 year old boy, who suffered injuries at the festival, passed away in the hospital yesterday.
In writing about a tragedy of this magnitude, I have to clarify that I only do so with publicly available information that has been reported in the news. The facts may change as more information becomes available. To that end, those to whom I conduct a question and answer style blog post are also limited to publicly reported information.
Astroworld Festival Background:
According to Wikipedia, the Astroworld Festival “is an annual music festival run by American rapper Travis Scott, held in Houston, Texas, at NRG Park, near the former site of Six Flags AstroWorld. The festival was first held in November 2018.”
The festival this year was held on Friday, November 5th, 2021, at NRG Park in Houston, Texas. It has been alleged that approximately 50,000 people attended the event on November 5th, though there may have been more as the venue, NRG Park, is said to be able to house up to 200,000 attendees according to Vulture, who has done a really good job of explaining how the event unfolded.
There were indications the crowd was going to be problematic from early in the day. One ABC reporter, Mycah Hatfield, said that there was a stampede of people who burst through the gates and trampled the VIP entrance at 2:00pm.
Once Travis Scott took the stage, as Vulture describes, “all hell broke loose.” One attendee was quoted saying, “All of what is to be 50,000 people ran to the front, compressing everyone together with the little air available.” This is what I understand to be a crowd surge.
The crowd surge, compression of individuals, and trampling, all appear to have led to the result of dozens injured and now ten people deceased. As this is going to result in significant litigation, with some lawsuits already filed, I decided to get some insights on how a concert could go awry by reach out to one of our law enforcement and security experts with experience and knowledge in major event security.
Law Enforcement, Security & Premises Liability Expert Witness:
Joseph “Paul” Manley, WVTS, CCIS, Principal at Risk Mitigation Technologies, LLC, is Board Certified Workplace Violence & Threat Specialist (WVTS), a Certified Crisis Intervention Specialist (CCIS), and a Board Certified Homeland Protection Professional (CHPP).
Prior to forming Risk Mitigation Technologies, LLC, Mr. Manley served a distinguished career in law enforcement and public safety. He has over 30 years of experience in Security Management and Law Enforcement and Security consulting, including physical security, security operations, regulatory compliance, and security training. He is currently a retired Lieutenant and Executive Officer for a Massachusetts Police Department. You can learn more about his practice at: riskmitigationtechnologiesllc.com.
I asked some questions and Paul Manley provided some excellent and thorough answers to these questions. Please see our conversation below.
Nick Rishwain: We understand, from reporting, that the Astroworld investigation is highly active. How does law enforcement investigate a mass casualty event? Can you tell us a little about the processes involved in such an investigation?
Paul Manley: In an initial response to a mass casualty incident (MCI) where no criminal involvement is present, the Fire Department will have the initial Incident Command responsibility. The local fire departments are very proficient in the handling of Mass Casualty Incidents. Most fire departments hold continuous MCI drills and have extensive equipment and supplies to manage mass casualties.
There are four specific things that Law Enforcement can do to assist the fire department in their management of an MCI. These jobs in the MCI Protocol for Law Enforcement are:
The initial critical decisions for the first responding law enforcement personnel at an MCI will be is this a criminal event? And are suspects still on scene?
Regardless of your first impressions of how the MCI was caused, officers should immediately begin a basic preliminary investigation during the first few minutes of the law-enforcement response.
Also, a law enforcement officer will immediately go to the Fire Command Post and accept law enforcement command duties in the Unified Command structure until relieved. This will ensure that the law enforcement Incident Commander is completely up to speed on the event if we later find out a criminal act has occurred.
The reality is mass casualty events pose unique challenges to law enforcement agencies such as securing the scene, investigating the crime, working with the media on a local and or national level, helping the victims and their families, responding to elected officials, securing critical infrastructure, and providing support to both their officers and to community members as they address the aftermath of a tragic event.
Nick Rishwain: On the security side, there appears to be an issue of the crowd surging towards the stage and trampling attendees. Is this a common concern for security at an event where there are tens of thousands of people?
Paul Manley: Crowd surges are common at large events, such as concerts or festivals. However, deadly crowd surges are not common.
Nick Rishwain: How does major event security prepare for and prevent crowd surges?
Paul Manley: Event security starts with a comprehensive threat assessment, analyzing the overall threat environments associated with the event, such as its host(s), the venue/environment, known or expected attendees, sponsors, historical events and political agendas.
Crowd surges are preventable, even at large events. It is about planning, managing, and separating the crowd, so it does not become too packed. That is what should have happened at Astroworld.
Crowd separation is crucial in preventing surges and crowd crush. Use barriers to create a channel that funnels fans smoothly into your check-in point. Place visible staff members at the start of your lines to yell directions to the crowd and ask them to have their tickets and identification ready. Venues must be organized in such a way as to prevent too many people from converging in one place. The bigger the crowd, the more likely it is that something can go wrong. Your staff needs to be comfortable with managing large groups and exerting authority when needed.
There must be enough security officers to manage the event. If it could be as simple as applying a city ordinance, state law or a defined security standard out of the ASIS Protection of Assets Manual, or even a retail crowd safety guideline from OSHA, this question would hardly be as popular of an issue. Presently there are no security standards defining the ratio of patrons to security staff. In most cases, while always blending security and safety, we should not exceed the crowd manager responsibility as per The National Fire Protection Association (NFPA 101), but should we assign 1-to-10 or 1-to-100? As with most security functions, an appropriate risk assessment is the most valid solution. The big-ticket items to consider are Crowd Control & Critical Coverage.
From news reports, we understand there were 1,283 security officers for a crowd of 50,000 people at the 2021 Astroworld Festival. They were overwhelmed at entrances earlier in the day according to the Vulture article you shared, and they were overwhelmed again when Travis Scott took the stage at around 9 p.m. The combination of overcrowding, lack of crowd separation, and not enough security officers (allegedly) had deadly consequences.
Also, crowd observers should be positioned around the perimeter of the crowd, high enough that they can spot surges or crush points. When a problem is identified, the observer alerts the performer. The performer should then pause the show until the situation is under control. The power and influence of a performer at a large venue cannot be ignored. They can help security and emergency personnel do their jobs by bringing awareness to the problem.
From a mitigation point of view, to lower the consequences of a crowd surge/rush, venue design measures could be implemented, such as the removal of obstacle and bottlenecks in crowd’s movements, which could give rise to slips, trips, and falls and, in the worst case, trampling or crowd collapses in an event space. Signage should be well visible, specifying emergency exits and general wayfinding within the event location. Also, event staff and law enforcement personnel should be highly visible to ensure they can be easily seen when giving instructions in crowed areas. Enhanced security and crowd management training should ensure staff is aware of directing spectators safely during an evacuation. (“Patron Management – Event Safety and Security Risk Update …”)
Nick Rishwain: According to this article from Vulture, it is claimed that a “mass-casualty incident” was initiated but it took 40 minutes to cancel the concert. How do security and law enforcement decide to cancel an event? Then what is the process?
Paul Manley: If a crowd is in distress, then there should be a procedure in place to immediately stop that event, at least temporarily. You should have a knowledgeable team of experts who know exactly what they are doing and can identify a crowd in distress. These stop teams are well trained, are in direct communication with the performer’s representative, lighting designer and the sound engineer who understand their role and responsibility in the event of an incident.
Nick Rishwain: We know there is an ongoing criminal investigation and lawsuits have been filed. On the civil side, is this a premises liability matter at its core?
Paul Manley: Sadly, yes, tragedies like this one do not just happen; They are preventable; they are often caused by negligence and poor planning.
Again, it has been alleged that rapper Travis Scott & Astroworld organizers ignored red flags. We also understand this is not the first time tragedy has struck an Astroworld event, nor is it the first time that Travis Scott has been involved in a performance or event that ended in violence.
From what we’ve read, this concert continued as people screamed for help. It appears some patrons even begged camera operators and security guards to stop the music to no avail. As reported, the police proclaimed a mass casualty event at 9:38 p.m. local time, just over 30 minutes after Scott started his set, but the performance did not stop until 10:15 p.m., nearly 40 minutes later. The situation appears to have gotten worse by the lack of preparation by the concert organizers. For example, allegedly there were a limited number of water stations, staggering overcrowding issues in the general admission areas, as well as the understaffed and under-resourced medical team.
If the reporting is accurate, these red flags and others that materialized earlier in the day as people stormed the security gates at the beginning of the festival, should have been enough of a warning sign that the venue either needed to improve their security coverage and response or have been canceled. However, these concerns, just like the pleas to stop the show as people were dying, appear to have been ignored.
With all of this said, I reserve the right to change my answers and analysis as more information about the tragedy is released. Also, I should say that I have not analyzed the police reports or any factual analysis on the ground which could also alter my analysis.
We thank Paul Manley for his analysis based on the publicly available information related to the Astroworld Festival. We may venture back into this matter at a later date as more of the facts are solidified and because there are such a large number of parties involved, we may require analysis from additional areas of expertise.
On Monday, August 23, 2021, the Pfizer-BioNTech COVID-19 vaccine was granted approval by the Food and Drug Administration (FDA) for individuals 16 and older. Due to its newly approved status, what was known as the Pfizer-BioNTech COVID-19 vaccine will now be advertised as Comirnaty (koe-mir’-na-ty). According to the BBC, “The approval ultimately came less than four months after the Pfizer-BioNTech filed for licensing in early May – the fastest vaccine approval in the FDA’s more than 100 year history.” The abrupt onset of the Coronavirus last year served as the impetus for a necessary response by medical professionals to reduce spread, infections, and deaths. Even though the vaccine has been distributed since December 11th, 2020, Acting FDA Commissioner, Janet Woodcock, M.D., hopes the FDA approval will cement certainty for concerned individuals to get vaccinated. With insight from FDA Expert Witness, Mr. Alan Schwartz of mdi Consultants, Inc., this blog post will examine the approval process for vaccines before and during COVID-19 as well as enlighten readers about reasons behind Comirnaty’s FDA approval.
Alan Schwartz is a seasoned expert in FDA protocols. He has over 50 years of experience in the field . When asked about the FDA’s general approval process, he states, “The process is NORMALLY very extensive. It could take years from the start of development through laboratory bench testing, animal safety studies, then human safety, and finally efficacy studies.” Mr. Schwartz also noted the avergage costs companies pay for these trials can reach up to $100 million, which these companies were able to actualize due to the Emergency Use Authorization (EUA). “The FDA under the EUA gave the companies a BULLET TRAIN path to get these through the emergency use approval,” he stated. In an ideal situation, the FDA would contact the clinical study participants throughout the duration of a year after receiving a vaccine. However, because of COVID-19, the vaccine has been officially approved after it has been administered to approxiamtely 100 million people. This was most likely due to political pressure and, more importantly, ensuring the well-being of citizens around the globe. In this situation, the long-term follow up was missing in the approval process. Nevertheless, the fact that roughly 100 million people received the Pfizer-BioNTech vaccine before its approval provided the necessary data on its efficacy and safety in real time. “So, did the FDA expedite the approval or did they have more data to use in their decision making process… we hope that they used good science to get this through the approval process since it was already being used for a year,” Mr. Schwartz mentioned.
Some concerns from those expressing doubt include whether the Pfizer vaccine was changed or modified for the purpose of an expedited approval process. Schwartz reassured there was an absence of changes regarding the production and formula of both the EUA and approved vaccinations. “This was all new to the FDA and in the industry… Normally when a vaccine or a drug is under FDA review there are many questions and back and forth that take a lot of time. I don’t think this was necessary under these conditions.” However, since Pfizer is currently manufacturing and advertising Comirnaty, the pharmaceutical company is allowed to continue using the EUA vaccine. The EUA is considered an experimental drug, but as soon as Comirnaty is ready for vaccine administration, Pfizer will be held liable if any problems arise.
A New York Times article stated, “Regulators are still reviewing Moderna’s application for full approval of its vaccine.” Since both Pfizer-BioNTech and Moderna vaccines are based on similar mRNA technology and both had emergency use authorization, there are questions regarding when the public can expect or not expect Moderna’s approval by the FDA. “I would be very surprised if we did not see Moderna approved,” Mr. Schwartz commented. Moderna has submitted their application for full FDA approval which is currently pending review. Announcements about its approval should occur in the near future (NPR).
The FDA has stated that the immunization will continue to be available for children aged 12-15 under Emergency Use Authorization (EUA). It remains uncertain when Comirnaty will be FDA approved for younger people, as the CDC recently announced its vaccine recommendation for said demographic back in May. Although there is not an official timeline, Mr. Schwartz predicts, “It may take until next year to obtain all required safety and efficacy data for pediatric indication.” The lack of data amid clinical trials is the primary reason as to why Comirnaty has not received approval for young people. However, this is not an obstacle for the Los Angeles Board of Education, the second-largest school district, who recently voted on September 9th to require students 12 and older to get vaccinated.
Current protocols include a mask mandate during in-person classes and frequent COVID-19 testing as a precaution against the virus. According to U.S. News, “Under LA Unified’s plan, all students age 12 and up will be fully vaccinated by the time they return to class following winter break on Jan.11. Those who are participating in sports and other activities need to receive a first dose of vaccine by Oct. 3 and a second dose by Oct. 31, while other students need to get their first dose by Nov. 21 and a second dose no later than Dec. 19.” Board members believe the implementation of this plan is the best course of action to responsibly protect children under the age of 12, the demographic not yet eligible for vaccinations. There are some parents who agree with the Los Angeles Board of Education’s vote, as it is similar to other immunizations students are required to receive such as chickenpox, polio, and measles to name a few. Other parents not only think the vote was rushed, but also believe the choice for their child receiving COVID-19 vaccine or not should be a parental decision.
So, we continue on this journey of uncertainty with COVID-19, the vaccines, and their aftereffects. It is only a matter of time before future vaccine mandates are implemented in school districts and businesses across the country. A special thanks to Mr. Alan Schwartz for his insight on the FDA approval process of the Pfizer-BioNTech produced Comirnaty vaccine.
$117 million talcum powder Mesothelioma verdict overturned by failure of the trial court to follow their gate-keeping role.
In an article today from Husch Blackwell, they highlight a case in which a significant verdict for the plaintiffs was recently overturned by the appellate court for failures to conduct a proper Daubert analysis.
As most of our members are aware, a “Daubert hearing” or “Daubert review” is the standard used by the trial court for admitting expert witness testimony. It is the federal standard for admitting expert witness testimony, but the standard has been adopted by a majority of US states.
For your brief review, I’ve decided to add the elements of the Daubert test below, from Cornell Law School:
whether the theory or technique in question can be and has been tested;
whether it has been subjected to peer review and publication;
its known or potential error rate;
the existence and maintenance of standards controlling its operation;
whether it has attracted widespread acceptance within a relevant scientific community.
There have been a wide variety of mesothelioma lawsuits against manufacturers and distributors of baby powder products. Generally speaking, the issue arises from long-term talcum powder use allegedly exposing plaintiffs to asbestos in the talcum powder which causes mesothelioma.
In my 11 years in the expert witness field, there have only been a couple toxic tort matters where the science has been as fiercely contested as it is in the talcum powder cases. The only other cases in recent memory where the science is hotly debated involves lymphoma resulting from the herbicide Round-Up. The Round-Up lawsuits resulted in an $11B settlement between plaintiffs and defendants.
This talcum powder case out of New Jersey, was very similar to the other talcum powder cases. The plaintiffs, Stephen Lanzo III and his wife sued a variety of defendants including one Johnson & Johnson subsidiary, claiming Mr. Lanzo’s long-term use of baby powder caused him to contract mesothelioma.
The trial judge permitted testimony from two of plaintiffs’ expert witnesses, Dr. James S. Webber, Ph.D. and Jacqueline Moline, M.D. On appeal, the 3-judge panel overturned the verdict because they didn’t think the trial court applied a proper Daubert standard in permitting the testimony from doctors Webber and Moline.
According to the article from Husch Blackwell attorney Brittany Lomax, the appellate court basically found that three prongs of the Daubert test were not met, “Namely, the opinions and theories were not tested, not subject to peer review and publication, and were not generally accepted in the scientific community. The panel further held that the trial court did not perform ‘its required gatekeeping function’ by failing to conduct a proper analysis to determine whether the expert opinions met the Daubert standards and failing to assess the methodology or the underlying data used by the two experts to form their opinions.”
As a result, the appellate court remanded to the trial court and ordered new trials for two of the defendants.
It is worth noting, this is a major win for defendants in these talcum powder cases. It appears the appeals courts, at least in New Jersey, are going to review scientific evidence with exceptional rigor.
According to the U.S. National Library of Medicine, “Medical malpractice is defined as any act or omission by a physician during treatment of a patient that deviates from accepted norms of practice in the medical community and causes an injury to the patient.” Medical malpractice is a component of tort law, which addresses professional negligence and offers reparations for civil offense. Some common examples of medical malpractice include misdiagnosis / delayed diagnosis, prescription drug errors, surgical / procedural errors, and failure to treat. However, until the recent COVID-19 outbreak, medical malpractice suits related to a pandemic have rarely been discussed. In this blog post, Experts.com aims to shed light on the topic with insight from Emergency Medicine Members, Sajid R. Khan, MD, and Vipul Kella, MD, MBA FACEP.
The COVID-19 pandemic brought about a plethora of problems for citizens, businesses, and industries all over the globe. According to Dr. Kella, “The pandemic placed enormous strain on our health systems: hospitals were operating at maximum capacity, supply shortages were well-publicized, and healthcare providers were scarce and overworked.” To add, during the pandemic, medical professionals had to simultaneously learn about the nature of the virus, its symptoms, and how it affected people of all ages. Despite the circumstances, essential workers in the medical field have abided by their ethical duty to commit no harm and to save their patients to the best of their ability. With the mystery of an unprecedented illness, and the learning curve associated with it, should the medical community be held to the same medical malpractice standard for COVID-19 as for other illnesses?
To his knowledge, Dr. Khan is unaware of any COVID-related malpractice lawsuits. However, to make a medical malpractice claim in most states, deviation from the standard of care must be demonstrated. Dr. Khan confirmed that the standard of care has frequently changed throughout COVID-19 due to the oddity of the situation. “Therapeutic recommendations change from month to month, making establishment of medical malpractice that more challenging,” he added. During the pandemic’s inception, healthcare professionals had to care for patients and prioritize their own physical well-being. Especially in populated areas like New York City, the medical community faced a scarcity of supplies. Dr. Khan, and many other Emergency Medicine professionals, have participated in a multitude of discussions about how to best select the patients who had the strongest chance of surviving. This of course is not the preferred method of treatment, but desperate times call for desperate measures. He stated, “It would be irresponsible to hold providers responsible for failing to provide optimal care to patients with such an illness.” Through the news and social media, the whole world has seen the medical community in action to help minimize the spread of COVID-19. Has the United States government taken any action to minimize the legal ramifications towards the healthcare industry? What measures can healthcare providers take to reduce the risk of medical malpractice involvement?
According to Dr. Kella, there have been a few acts passed by the federal government to alleviate the stress of the medical community. He mentions the Public Read and Emergency Preparedness (PREP) Act and the Coronavirus Aid Relief and Economic Security (CARES) Act. The PREP Act, amended by the US Department of Health and Human Services, provides legal protections to medical providers, whereas the CARES Act protects healthcare providers offering volunteer services during the pandemic against liability. “These regulations were good news for physicians as they allowed more leeway for trying to deliver care during difficult circumstances that were often out of their direct control,” Dr. Kella mentioned. Although there is protective legislation, this does not mean the medical community should not maximize efforts to minimize medical malpractice lawsuits. COVID-19 is known to advance a patients’ pre-existing or chronic disease. For instance, the standard of care has altered throughout the pandemic and, as such, Dr. Kella has suggested healthcare providers to meticulously check the documentation and routines of their patients to avoid negligence.
As the United States produces and administers vaccinations, the medical community’s knowledge of COVID-19 expands. Medical malpractice may not have played a large role throughout the beginning of the pandemic. As the days pass and perhaps more litigation arises, holding COVID-19 medical professionals to a strict standard of care, unless it is an egregious departure, could have a chilling effect on the medical community. As was apparent in the middle of the outbreak, the last outcome our country needs is fewer doctors and nurses.
Technology giants like Amazon, Facebook, and Google face legal battles yearly. Recently, another behemoth has followed suit (pun intended). On August 13th, 2020, Apple found itself involved in an antitrust lawsuit against Fortnite video game creator, Epic Games. The trial began on May 3rd, 2021 and is ongoing, so this blog post will not have all the answers. As it unfolds, this post will delve into the perspectives of both businesses, describe the nature of the trial, introduce opening statements from the first day of the trial, and explain possible outcomes for both Epic Games and Apple.
Epic Games has filed an antitrust lawsuit against Apple Inc. in response to the removal of its most popular game, Fortnite, from the iPhone App Store. This prohibited 116 million of its 350 million users from updating the game and new consumers from downloading the app (this does not affect the remaining players using other smartphones or gaming consoles). Fortnite’s eradication from iOS App Stores has caused players from around the world to unite in a social media campaign called #FreeFortnite. Epic Games accused the tech giant of monopolizing purchasing options for apps by restricting other methods of conducting transactions. Due to Apple’s renowned international success, Epic Games has filed lawsuits against Apple in Australian, United Kingdom, and European courts. Epic Games not only wants Fortnite back on the iOS App Store, but it also wants to launch a rival App Store on all Apple devices so users can purchase Epic Games products through non-Apple means.
The catalyst for Fortnite’s removal from Apple’s App Store was the release of a new update by Epic Games which included the implementation of an in-game purchasing currency called “V-Bucks.” This currency allows players to buy items through non-App Store channels. Users who purchase Fortnite items such as outfits, pickaxes, and the latest season’s Battle Pass get to enjoy a 20% discount, which incentivizes players to continue using V-Bucks. Since these purchases are not made through the App Store, V-Bucks circumvents Apple’s chances of receiving its 30% share of any transaction, hence its removal from the App Store and the foundation of #FreeFortnite. In response to Epic Games’ claim of Apple becoming a monopoly, Apple explains the fairness in its decision to remove the game from its App Store. According to Apple, Epic Games violated its agreement by installing V-Bucks without Apple’s permission. If Apple wins the trial, this contract violation could keep Fortnite and all other apps made by Epic Games, or apps run by its game engine, Unreal Engine, from the App Store (The Verge).
The trial began on Monday, May 3rd, 2021 in federal court in Oakland, California. This proceeding is a bench trial; thus, the judge will be making the final ruling with no jury. The trial will be held in person and the press and public are prohibited from entering the courtroom. The presiding judge for the United States trial is Judge Yvonne Gonzalez Rogers. Pending trial, she declined Epic Games’ request for Apple to host Fortnite on iOS devices. Trial dates for the international lawsuits against Apple are unknown. However, Epic Games has recently filed lawsuits in November 2020 (Australia), January 2021 (United Kingdom), and February 2021 (Europe).
Opening Statements and Trial Arguments (photo credits from The Verge)
In its opening statement, Epic Games compares Apple’s restrictive policies to a “Walled Garden.” Its argument is based on the unfairness of Apple’s control over purchasing options. Two expert witnesses testified on behalf of Epic Games. University of Chicago economist, Dr. David Evans, told the court, “Apple’s rules unfairly prevent developers from letting consumers know if their prices for in-app purchases take into account the iPhone maker’s 30% commission or that consumers may be able to get better deals elsewhere,” (Wall Street Journal). To add, Susan Athey, an Economics of Technology professor at the Stanford Graduate School of Business, explained Apple’s stronghold over consumers is due to their prohibitive iOS mobile operating system. In the case of this trial, if a consumer wanted to access Fortnite an iPhone, the user would need to switch to a different smartphone brand and repurchase all the apps originally purchased from iOS devices. Since the internet is needed to play Fortnite, Evans highlights how gaming consoles could never replace smartphones, as it lacks cellular data for users who want to play the game from anywhere.
Apple’s opening statement was a defensive response to Epic Games’ claims. According to The Wall Street Journal, Apple hired University of Pennsylvania Wharton School professor, Lorin Hitt, to discuss in-app purchases. Hitt claims, “anticompetitive measures tend to result in reduced quality, yet that hasn’t happened with iPhone and iPads apps, as developers have seen their revenue increase over time.” Essentially, consumers notice the value in the offers proposed by Apple. As noted by the graph below, Mr. Hitt also denounced Epic Games’ claim about Apple’s monopoly-like practices. Users switch devices frequently because people like the products acquired for different reasons. If this were not the case, Play Station and XBOX would not generate over 50% of Fortnite’s revenue for the last two years. This also infers that most Fortnite users are not on iOS devices, which is surprising considering there are 1.5 billion active Apple devices. In addition, Apple insists the iPhone offers multiple avenues for financial transactions. Although difficult to decipher, the second picture provided by Apple indicates that the iPhone, compared to its competitors and subsidiaries, offers three types of digital game transactions options: The App Store, Web Applications, and Purchasing on Other Platforms to play on iOS. Ultimately, Apple is arguing that its practices are not prohibitive nor remotely resemble a “Walled Garden.”
The outcome of the trial between Epic Games and Apple Inc. can end in multiple ways. One hypothetical is the verdict will resume the current situation: users could not access Fortnite on iOS devices, but other games produced by Unreal Engine will remain on Apple’s App Store. If the judge rules in favor of Epic Games, it may be able to create and launch its own App Store on iOS devices.
In addition to the trial, a new state bill that recently passed the House 31-29 may negatively impact Apple’s case. According to The Verge, Arizona’s House Bill 2005, “prevents app store operators from forcing a developer based in the state to use a preferred payment system…,” which would ultimately force Apple to provide various payment methods on iOS. This development could be beneficial for Epic Games.
News media and tabloids have been focused on the high-profile divorce. We were interested in how divorce impacts a family foundation.
Last week, the tech and media worlds were abuzz with news of the Bill & Melinda Gates divorce. After 27 years of marriage, one of the richest couples in the world decided to call it quits. This was a shock to many outsiders looking in. Their long-term marriage, despite all the trappings of wealth and influence, seemed like it would stand the test of time. The New York Times, in this article, described the two parties as having “reshaped philanthropy and public health,” with the fortune acquired by the couple as a result of Mr. Gates being a co-founder, and past CEO, of Microsoft.
Certainly, when I think of philanthropy, I think of the Bill & Melinda Gates Foundation. A well-funded operation run by the couple, in a fight against global health crises. Last year, when COVID-19 invaded every aspect of our lives, Bill Gates was seen on TV and in articles providing guidance on dealing with the pandemic. Through his work at the foundation he had gained significant insight and had been warning of pandemic threats for many years. Bill played such an instrumental role in the process that many people now associate the foundation with public health.
On the home page of the Bill & Melinda Gates Foundation, the first thing a visitor sees is the following text: “We are a nonprofit fighting poverty, disease, and inequity around the world.” Much of their philanthropic work takes place in the form of grants. In 2019 alone, the Gates Foundation provided more than $2.7 billion in grants according to their own reporting. The foundation has made grants in the following areas: gender equality, global development, global health and more.
Now that the Gates’ are calling it quits, how will that impact the operations of this massive nonprofit?
Nonprofit attorney and consultant insights
Having little or no experience with nonprofits (more specifically a family foundation) myself, except for my annual contributions, I reached out to one of our consultants, Jess Birken, Esq. Ms. Birken is the owner of the Birken Law Office, located in Minneapolis, Minnesota. She is a lawyer who helps nonprofits solve problems so they can focus on what really matters… their mission. Her practice specializes in nonprofit organizations. Before becoming a private practice attorney, Ms. Birken spent four years inside a national nonprofit organization, Pheasants Forever. In that role she managed about $50M in state and federal government grants and worked on hundreds of conservation real estate deals.
In essence, Ms. Birken had the expertise I was seeking. She could answer the questions I had about nonprofit operations in the face of familial separation. For purposes of attribution, I had developed some of my questions from this article by Vox. Ms. Birken used thisNew York Times article for some of the information about the organizations.
Below, you’ll find my questions and Ms. Birken’s answers:
Nick Rishwain: This matter involves a family foundation. How is a family foundation different from other types of nonprofits?
Jess Birken: Generally, a “family foundation” is completely or mostly funded by one family. The term family foundation isn’t a legal term though, it’s just a way to describe a private foundation with that characteristic. Private foundations in general are different from the nonprofits most people think about when they hear the term “nonprofit.” Most people hear nonprofit, and they are picturing a public charity (like your local church or pet rescue).
Both public charities and private foundations get tax-exempt status and are labeled as 501(c)(3) organizations by the IRS. Both types are established for a charitable purpose and have a mission. Both types can use the word “Foundation” in their title. It can all be a little confusing. The major difference between a private foundation, like The Bill and Melinda Gates Foundation, and a public charity, like the Make-A-Wish Foundation, is where they get their financial support. Public charities raise money from the general public, but a private foundation usually has one source of funding, typically an individual, family, or corporation.
Another key distinction is that private foundations also often differ in their activities. They typically don’t run programs directly – like, say, a soup kitchen serving people experiencing homelessness. Instead, private foundations often make grants to other organizations. A private foundation might make grants to many homeless shelters running many soup kitchens. Other differences between the two include the fact that the board of a private foundation is not required to be diverse (often the board is made up of only family members, etc.); that they are required to make charitable distributions throughout the tax year; and that they must pay a nominal excise tax on their net investment income.
Nick Rishwain: We know divorce can have impacts on businesses and real property, in respect to division of assets. Are nonprofits incorporated in a similar way which would cause a division?
Jess Birken: Generally, no single person owns a nonprofit. Nonprofits do not have shareholders or issue stock and private individuals can’t benefit from them. So, they aren’t an asset that can be split up in a divorce.
Nick Rishwain: In the Vox article, the foundation said, “that the philanthropy did not anticipate changes to its work.” What changes might a divorce cause to a nonprofit?
Jess Birken: Theoretically none. Even a family foundation has a board of directors. These directors have fiduciary duties to carry out the mission and take actions in the best interest of the nonprofit – regardless of any individual board members’ personal life situation.
In the case of a family foundation, however, where the primary funder is the family, then it could be the case that the donations to the foundation that are directly from the family will decrease temporarily (or long term) as the assets of the donor family are apportioned through a divorce proceeding. Whether this happens may be revealed through the upcoming IRS Form 990 filings that show revenue and contributions by donor as part of Schedule B in the years ahead. So, a temporary reduction in activity or some kind of holding pattern (versus expansion) could happen. In the case of the Bill and Melinda Gates Foundation, the foundation has net assets forming an endowment of about $50 billion. So, any flux in family contributions is likely to be a minor hiccup for this foundation.
Nick Rishwain: Are nonprofit organizations, such as the Bill & Melinda Gates foundation usually funded year-to-year?
Jess Birken: For accounting purposes the nonprofit accounts for contributions it receives during its accounting year. How frequently donations are made by a family will depend on the family and their philanthropic vision and tax planning needs. I’m not an estate planning expert but it’s probably fair to say that in general donations to family foundations are likely to be calculated annually based on each year’s tax planning situation.
Nick Rishwain: In the above article, Vox indicates the Bill & Melinda Gates divorce might impact their nonprofit foundation. Could a private divorce impact the work or funding of such a large nonprofit organization?
Jess Birken: From the perspective that both parties to the divorce are on the board of directors, that’s certainly possible. As I mentioned before, the assets of the family will be getting a shakeup through the divorce. It’s possible that either Bill or Melinda – once they have completely separate households – will make their own contributions based on their own philanthropic interests.
In this instance, however, it seems their public commitment to the core foundation work is aligned and, in my opinion, probably true. The foundation itself has an endowment of $50 billion to work with – the divorce won’t affect that core fund. So, the interpersonal aspects are more important in this case. Warren Buffet was recently added to the board of directors as a Trustee and is also a contributor. This will likely have a stabilizing effect and may have even been planned for that reason – I’m speculating but it makes sense.
As far as interpersonal problems between the couple causing issues around pushing for one charitable interest over another, this has already been addressed. Each member of the couple already has a fully formed enterprise where they can pursue their individual agendas and those have been in place for some time. Bill Gates has Gates Ventures a company first formed after he stepped down from full time work at Microsoft in 2008. His enterprise focuses on clean energy, climate change, education, and health. Melinda French Gates formed her Pivotal Ventures company in 2015 which works on gender equality and social progress. So, each has an outlet for pursuing their individual goals which likely insulates the foundation’s work even more.
Well there you have it! My questions were answered. If you have more questions about nonprofits and charitable organizations, reach out to Jess Birken at here website: birkenlaw.com. For more information, you may also want to check out her podcast: charitytherapy.show.
Welcome to Part 2 of Experts.com’s Deepfake Blog Series! In case you missed it, check out Part 1. The focus for Part 2 is to delve into the legal ramifications and perceptive dangers of deepfake videos, along with solutions for individuals and organizations who have been negatively affected by deceptive content. Continued insight from Audio, Video, and Photo Clarification and Tampering Expert, Bryan Neumeister, and new knowledge from fellow Experts.com Member and Online Reputation Management Expert, Shannon Wilkinson, will be included in this post.
Due to the relatively new concept and technology of deepfake content, the legal ramifications are not concrete. In fact, admitting deepfake content as evidence in some criminal and civil court cases can be a precarious endeavor because of metadata. According to the Oxford Dictionary, metadata is “information that describes other information.” Think of metadata as information found on a book. Listed is the author’s name, summary of the author, synopsis of the book, the name and location of the publishing company, etc. Metadata answers the same inquiries about videos and photographs on the internet. It has even been used to solve crimes. For example, in 2012, law enforcement found John McAfee, a man who ran from criminal prosecution for the alleged murder of his neighbor, using the metadata from a photo VICE Media, LLC released in an interview with the suspect (NPR). “The problem with metadata is when you upload any video to YouTube or Facebook, the metadata is washed because the user gives up the right to the video,” a statement by Bryan Neumeister. Reasons vary as to why metadata is removed. Some platforms have policies to disregard metadata to expedite the download time for such images and videos. However, it raises concern for those interested in preserving intellectual property (Network World). In addition to the numerous reposts a photo or video acquires, finding the original author of a post on major social media platforms poses a problem for litigants.
Entering evidence into court becomes a Chain of Custody issue (702, 902) through the Daubert Standard, which is a set of criteria used to determine the admissibility of expert witness testimony. Part of Mr. Neumeister’s expertise is to sift through the components (time stamp, camera, exposure, type of lens, etc.) of digital evidence via computer software systems to determine its authenticity or modification. One of the many techniques he uses is to look at the hash value of digital evidence. According to Mr. Neumeister, “Hash values are referred to in Daubert 702 as a way to authenticate. Think about a hash value as a digital fingerprint.” Without this set of numerical data, the most vital piece of proof needed to discern an original from a fake photograph or video, the digital evidence should be ruled as inadmissible by Daubert standards, as there is no chain of custody to a foundational original. Because deepfakes are difficult to track, and perpetrators are mainly anonymous underground individuals with limited assets, prosecuting these cases is a long-term investment without the return. From a moral perspective, justice should be served. With little or no recourse, the frustration is overwhelming for people whose character and financial future have been put in jeopardy.
Deepfakes may be complicated in the legal arena, but in the world of public perception, its role is much more forthright. In recent years, perception has become reality, and this notion rings resoundingly true regarding deepfake content. People who create and publish deceitful content have three main goals: to tarnish a person or company’s reputation, change a narrative, and ultimately influence the public. “Deepfakes are not usually done by big corporations. There is too much at stake. They are usually done by groups that have an intent to cause misdirection,” a direct quote by Mr. Neumeister. The truth about events regarding politicians, or any other public figure, has now become subjective. Like most viral posts, once a deepfake video is released, unless a user participates in research and finds other sources that confirms or denies deceptive material, people will believe what is shown on social media. There are two reasons for this: 1) it confirms an already ingrained bias, and 2) some people would rather trust the information instead of actively looking for sources that contradict the deepfake due to lack of will or information overload. Studies have shown it takes just a few seconds to convince people who are leaning the way a deepfake video is portraying a situation to believe the content. Even if there is a source that has been fact-checked and proves the contrary, the damage to a public figure’s perception has already been done.
For instance, one of the most popular types of deepfakes are centered around pornography. As discussed in Part 1, the General Adversarial Network (GANs) generated deepfake videos have a specific algorithmic structure that accumulates multitudes of any footage and mimics the desired output data. However, its blatantly realistic and high-quality footage is too exaggerated to be an authentic video. To further augment the illusion, people use techniques such as adding background noise, changing the frame rate, and editing footage out of context to make the video more “realistic.” According to Mr. Neumeister, “The more you dirty it up, the harder it is to tell … and then you’ve got enough to make something convincing that a lot of people won’t fact check.” This unfortunate reality, the emergence of different types of deepfake content can ruin the reputations of individuals and businesses across the board. Fortunately, there are methods to managing public perception.
A positive public image is one of the driving forces for success, trust, revenue, and a growing client base. For this reason, malicious and manipulative material found on the internet is threatening. The internet allows everyone to become an author, which gives users the power to post a variety of content ranging from true stories to false narratives. When businesses and organizations find themselves in a fraudulent crisis, “it can impact shareholder value, damage an organization’s reputation and credibility in the eye of consumers and customers, and result in the dismissal or stepping down of a CEO, board members, and/or other key leaders,” stated by Shannon Wilkinson, an Online Reputation Management Expert. Individuals who have less of a digital presence than organizations are more at risk for facing defamatory content. It begs the question, what types of crisis management strategies can business and individuals use to defend themselves against deepfake content?
One of the reasons why crisis emerges for organizations and public figures is due to the lack of proactiveness. Luckily, Ms. Wilkinson has provided numerous tips on how to prioritize reputation management and crisis response to build a “powerful digital firewall.” For reputation management, Ms. Wilkinson recommends:
Understanding how one’s business and brand appears to the world.
“Each Google page has 10 entries, discounting ads…The fewer you ‘own’ – meaning ones you publish… – the less control you have over your online image,” according to Ms. Wilkinson.
Customizing LinkedIn and Twitter profiles.
Publishing substantive and high-quality content related to one’s field of expertise or organizations (white papers, blogs, articles, etc.).
As for crisis response options, there are two key components businesses and individuals must consider before crafting a recovery plan:
Possessing an online monitoring system alerting when one’s brand is trending on social media (ex: Google Alerts and Meltwater)
Seeing conversations in real time to augment one’s social presence within those digital spaces.
Below are the recommendations regarding the actual response to a crisis:
Social media platforms like Facebook and Twitter seem to be the more popular spaces to respond to deepfake content.
Updating current and existing information is a vital strategy to counter attacks.
Avoid engaging with anonymous commentors and trolls.
“Video is an excellent tool for responding to situations that result in televised content. A well-crafted video response posted on YouTube will often be included in that coverage. This strategy is often used by major companies,” a direct quote from Ms. Wilkinson.
The why behind creating, manipulating, and posting deepfakes for the world to see seems to be a moral dilemma. The motives behind uploading such misleading content are different for those who participate but nefarious, nonetheless. Legally, it remains an area of law where justice is not always served. Thanks to our Experts.com Members, Bryan Neumeister and Shannon Wilkinson, the what, when, how, and where aspects of deepfake content have been explained by people who are well-versed in their respective fields. In the height of modern technology and the rampant spread of misinformation, our Experts advise all online users, entrepreneurs, public figures, and anyone with access to the internet adequately fact-check sources encountered on the web. Those associated with businesses or happen to be public figures should prioritize developing crisis management precautions. In Mr. Neumeister’s own words, “People can destroy a city with a bomb, but they can take down a country with a computer.”
Computer technology is one of the most pivotal inventions in modern history. Artificial Intelligence, smartphones, social media, and all related apparatus have significantly enhanced living conditions in an unprecedented manner and connected the world with a click of a button. It is used in various occupations: from business related fields to more creative professions. To say modern technology has been advantageous in recent decades is an understatement. However, every creation has its flaws. This multi-part blog series is intended to reveal one of those flaws, and a dangerous one at that, deepfake videos. This first post includes an introduction to deepfake videos, and the steps taken by federal and state governments to identify such duplicitous content. Special insight on the subject is provided by our Experts.com Member and Audio, Video, and Photo Clarification and Tampering Expert, Bryan Neumeister.
Editing footage and photos is normal practice in our selfie-addicted new normal, but creating distorted content is a whole new ballgame. According to CNBC, deepfakes are “falsified videos made by means of deep learning.” These videos, images, audios, or other digital forms of content are manipulated such that counterfeits pass as the real thing. What makes matters worse is the internet allows anyone and everyone to create, edit, and post deceptive content. It is one of many threats to cybersecurity strategists, police departments, politicians, and industries alike because the purpose of making them is to spread misinformation, tarnish reputation’s, exploit evidence, and to ultimately deceive an audience. The unfortunate reality is deepfake videos which display pornographic scenarios and manipulated political moment are the most common. For instance, a notable deepfake video was posted by Buzzfeed in 2018 depicting former United States president, Barack Obama, slandering another former United States president, Donald Trump. However, the voice behind Obama is none other than Jordan Peele. The video was intended as a moral lesson to explain how important it is to verify online sources, and to highlight the dangerous problem of trusting every post uploaded to the internet.
According to Mr. Neumeister, who specializes in this area of expertise, there are two types of artificial intelligence programs used to create deepfake videos: GANs and FUDs. He states, “GANs (Generative Adversarial Networks) are used by professionals, and FUDs (Fear, Uncertainty, and Doubt) are the homemade ones.” Although FUD videos garner more attention among internet users, the real menace to society are the videos made from GANs.
Videos made from Generative Adversarial Networks have an algorithmic framework designed to acquire input data and mimic the desired output data. One can visualize how GANs work through the viral Tom Cruise TikTok deepfake. According to NPR, the creator of the deepfake, Chris Ume, used a machine-learning algorithm to insert an accumulation of Tom Cruise footage. This allowed him to give a digital face transplant to the Tom Cruise lookalike actor he hired for the video. Ume input a plethora of videos to create a desired output of a realistic face swap. Neumeister also adds that the most realistic deepfakes correlate to the amount of footage a person can acquire. Specifically, “the more bits of video clip you have to put together, the more accurate you can make facial movements, ticks, etc.” From this logic, it can be inferred that Ume’s Tom Cruise deepfake looks more realistic than those that lack algorithmic programs.
Because viewers typically see deepfakes in politics and pornography, federal and state governments have recently implemented laws to counteract deepfake content creation and distribution. President Trump signed the first deepfake federal law near the end of 2019. This legislation is included in the National Defense Authorization Act for Fiscal Year 2020 (NDAA), which is a $738 billion defense policy bill passed by both Senate (86-8) and the House (377-48). The two provisions in the NDAA requires: “(1) a comprehensive report on the foreign weaponization of deepfakes; (2) requires the government to notify Congress of foreign deepfake-disinformation activities targeting US elections,” (JD Supra). The NDAA also implemented a “Deepfakes Prize” competition to promote the investigation of deepfake-detection technologies. On a state level, there have been laws passed by multiple states that criminalize specific deepfake videos (JD Supra):
Virginia: first state to establish criminal penalties on the spread of nonconsensual deepfake pornography.
Texas: first state to ban creation and dissemination of deepfake videos aimed to alter elections or harm candidates for public office.
California: victims of nonconsensual deepfake pornography can sue for damages; candidates for public office can sue organizations and individuals that maliciously spread election-related deepfakes without warning labels near Election Day.
Although the Trump administration and various states established policies against deepfakes, it remains ubiquitous on almost all online platforms. How can users at home distinguish authentic content from deepfakes?
Mr. Neumeister provides a few tips and tricks for detecting a deepfake. One giveaway mentioned is mouth movement, otherwise known as phonemes and visemes. Mouths move a certain way when people speak. For instance, words like mama, baba, and papa start with a closed mouth. Words like father, and violin start with the front teeth pushing against the bottom lip. To add, consonants and vowels also sound a certain way when pronounced correctly. “Words with t, f, n, o, and wh, are pretty good for tells,” adds Mr. Neumeister. When analyzing video, the frames in which a person is speaking are broken down into approximately six to ten frames to determine if the way someone talks in other videos is the same as the video being analyzed. Another tip Mr. Neumeister suggests is to watch videos with context in mind. Viewers should pay attention to background noise, crowd ambiance, and the cadence in a speaker’s sentences. Authentic and original content would have, by nature, realistic frames. Users can detect a deepfake by sensing dissonance in, for instance, a speaker’s proximity to the microphone or a size of a room. For users at home or on-the-go, these tips are crucial for distinguishing verified sources from manipulated misinformation.
The emergence of deepfake content, its continuously improving technology, and the spread of disinformation is a multifaceted and complex problem. This blog post has only scratched the surface, so stay tuned for part 2 for a more in-depth read.
Despite the daunting aspects of COVID-19, the pandemic provided millions of people around the world with an escape from reality: streaming service subscriptions. Netflix, Disney+, and others alike are dominating the entertainment industry. Within the first year after its inception, Disney+ accumulated 86.8 million users and predicts a trajectory of 260 million by 2024 (Variety). In 2020 alone, nearly 37 million people bought Netflix subscriptions, bringing the total number of subscribers to more than 200 million (BBC). On January 20th, 2021, its shares increased by 15% in its fourth quarter earnings (Business Insider).
What is the catalyst for the success of these two streaming services? Insight from one of our very own Members at Experts.com will help answer these questions. Before delving into these insights, however, it is important to acknowledge the differences between the two streaming services.
Disney+ is significantly cheaper than its rivals due to its slim library of around 600 movies and shows. However, the type of content it acquires is the gravitational element for its growing audience. Disney+ is the leading content provider for fans of Disney Original Movies, Marvel, Pixar, and “Star Wars” franchises.
Netflix is known for its high-quality original shows and movies such as “Bridgerton,” “The Queen’s Gambit,” and “Marriage Story.” Its international content, like “Lupin” and “La Casa De Papel,” has increasingly appealed to audiences. Unlike Disney+, Netflix also allows consumers to stream movies with family and friends for free with Teleparty. This service may be more expensive, but its library of nearly 4,000 shows is worth the subscription. With these crucial differences in mind, let’s delve into our Experts’ contributions.
Dr. Brent Coker is an Online Consumer Psychologist with a PhD in Electronic Commerce. He is also a Digital Marketing and Digital Business Models professor at the University of Melbourne. Based on his extensive knowledge on consumer behavior, Dr. Coker believes the rise in streaming entertainment services is indirectly correlated to COVID-19 for a couple of reasons:
The first is the unexpected lifestyle imposed onto the world by the pandemic. National emergency calls made by various world leaders have induced policies including stay-at-home orders, remote learning and work, as well as limited in-person interaction. This new reality forced consumers to alter purchasing habits from before the virus, like spending more on internet bandwidth for work (which varies by country as some lack unlimited speed plans) rather than tickets for movies or other live performances. “Consumers ‘rationalise’ the extra cost out of necessity (they convince themselves the extra cost is needed not just wanted),” a direct quote from Dr. Coker. This high quality and faster internet further justifies subscribing to streaming services. Disney+ and Netflix’s stellar financial performances are due to the millions of people adjusting to more confined circumstances.
The second reason is the lack of entertainment options. Because of the new social-distancing guidelines, in-person music festivals, sporting events, and dining at restaurants without restrictions are limited. Coker states, “People divide their entertainment options according to gratification – live performances, stage shows, cinema, and TV.” He then explains the absence of in-person events leads people to search for substitutes. It appears Netflix and Disney+ were the perfect replacement for millions of people this past year.
Dr. Coker also alluded to a slight change in advertising and endorsements. Instagram, Facebook, and Twitter are a few of many social media platforms people use to stay informed and connected. It is also the arena in which influencers use their online presence to promote trends and brands. Dr. Coker mentions Tiger King, one of the first Netflix Original shows to be released just before COVID-19, as a prime example of endorsement through social media. The documentary, especially its eccentric and bizarre main subject, Joe Exotic, became a meme used to draw more attention to audiences around the globe. Memes are “amusing or interesting items (such as captioned picture or video) or genre of items that are spread widely online especially through social media,” (Merriam-Webster). Dr. Coker finalizes his thoughts on social media connectedness by stating, “This is essential endorsement and word-of-mouth thus herding effects as people jump on board to experience what they perceive is the new norm.”
The requirements of greater internet bandwidth for work, the loss of outdoor entertainment, and the implementation of stay-at-home policies have kindled the need for home entertainment. In 2020 alone, both companies have accrued millions of subscribers. Thanks to our Experts.com Member, Dr. Brent Coker, his insight on Consumer Behavior and Digital Marketing shed light on how the unanticipated lifestyle engendered by COVID-19 indirectly played a role in the purchasing decisions of people around the world and shapes how citizens perceive this new reality through social media. It remains to be seen whether Netflix and Disney+ will perform as well post-pandemic.
After a tumultuous year full of uncertainty and angst, the start of the new year, unfortunately, followed suit. Due to last week’s raid of the Capitol Building, resulting in Donald Trump’s removal from various social media apps, the debate over the understanding of free speech is in full swing. Some critics say Trump incited violence and rightfully deserved to be permanently banned on Twitter. Others defend the President’s speech and are calling to repeal Section 230 of the Communications Decency Act. This week’s post will define Section 230 and its role in the free speech debate.
To note, the purpose of creating the Communications Decency Act was to enact provisions to free speech online. Because Internet users opposed these restrictions, Section 230 was enacted in 1996 (Electronic Frontier Foundation). According to the Federal Communications Commission (FCC), “Section 230 provides websites, including social media companies, that host or moderate content generated by others with immunity from liability.” In other words, these companies do not bear the responsibility for its consumers’ speech. Section 230 is inapplicable to Federal Criminal Law and Intellectual Property Claims. Since Twitter is a private company, this legally legitimizes its decision to permanently suspend the President’s account, as he allegedly spread misinformation about the election according to its Terms & Conditions. However, this turn of events has left moderates, conservatives, and republicans feeling silenced.
Trump’s Twitter ban was the catalyst for the removal of Parler (a social media platform which garnered a primarily conservative following) from Apple and Amazon app stores. Its eradication stems from its anti-censorship brand, meaning it does not monitor its users posts. Unlike Twitter, who uses Section 230 to monitor speech, Parler has the right as a private company to exercise the opposite. It begs the question, is Section 230 relevant to free speech?
The First Amendment “guarantees freedoms concerning religion, expression, assembly, and the right to petition,” (Cornell Law School). Congress is prohibited from making laws which limit an individual’s First Amendment right, whether it is exercised in public physical space or on the internet. From the looks of Trump’s removal from Twitter, it is understandable why conservatives would be upset. The concept of a social media corporation eradicating the leader of the free world’s personal account is shocking, and shows just how much power these social media apps have over what their viewers are allowed to see. For many, these actions by Twitter and Facebook add even more salt to the wounds of the political divide created this past year. At face value, it makes sense why moderate and right-leaning voters would want to repeal Section 230. However, revoking Section 230 is much more threatening to the First Amendment than one might think (USA Today).
If Section 230 was abrogated, online businesses would monitor speech on a more frequent basis. Websites would become liable for every individual social media post, photo, blog, comment, and video a person publishes. Accommodating user-created content would be a precarious endeavor because these companies could be sued for every contentious post, which is unrealistic considering these websites have accumulated millions of users worldwide. If social media companies and those alike embodied an editorial role towards user-created content, it would end real-time communication, limit expression, tarnish social media providers’ reputations, and even cause them to shut down due to endless litigation. In the event Section 230 is repealed and edited, Congress must be cautious of its constitutional duty to not implement laws that limit the freedoms of American citizens and, unintentionally, chill protected speech.
Section 230 may protect a business’ right to negate liability for its users’ posts, but it does not protect a company from antitrust lawsuits. Parler sued Amazon in response to its removal from Amazon Web Services, an auxiliary provider of on-demand APIs and cloud-computing platforms (Reuters). Amazon claims Parler’s failure to monitor speech had a large role in planning the siege of the Capitol Building. Although it removed most of the troublesome posts, Parler responded to this by accusing Amazon of breaching its contract by forcing the social media app to shut down. Parler was warned about Amazon’s intolerance to offensive speech, yet Parler argued that any of its users’ posts, that do not engender premeditated action, are protected under the First Amendment. As this is an ongoing case, the outcome of the lawsuit will not be decided for a long time to come.
Ultimately, Section 230 is arguably the most integral component of the free speech debate considering the recent events of Trump’s Twitter ban and Parler’s lawsuit against Amazon. Free speech within the realm of the internet is a very different arena compared to speech in public physical spaces. As unfortunate as the Capitol Building raid was, it brought to light important nuances of the First Amendment as it relates to the internet.
The news of Bitcoin’s recent and successful market performance is spreading like wildfire. In the eleven years since its inception, it has surpassed the market value of companies such as Visa, Mastercard, and Walmart (CNN Business). As of the date of this publication, one Bitcoin is being traded for $34,306.17. This incredible feat has made Bitcoin quite popular for investors and people interested in financial markets. However, some critics have raised concerns about Bitcoin and cryptocurrency in general. Defining Bitcoin, explaining its functions, and addressing the advantages and disadvantages to cryptocurrency will be the subject of this week’s blog post.
Although the algorithms for the modern-day cryptocurrency have existed since the 1980s, the emergence of Bitcoin has changed the future of financial transactions. Bitcoin’s founding in 2009 is shrouded in mystery. The housing market crash of the same year was the catalyst for its emergence. By whom is the enigma. The founder of Bitcoin is known by the pseudonym Satoshi Nakamoto. The true identity of the person or persons is still unknown.
Bitcoin is a form of decentralized cryptocurrency. Because its design is public, all transactions are managed by “peer-to-peer” technology instead of banks. Cryptocurrencies are often compared to an online version of dollar bills and can be used to buy and sell services and products. To obtain Bitcoins, people can buy it using “real” money, have people pay for a product using Bitcoin, or “computer-mining,” like searching for gold. Because Bitcoin is essentially a computer file, consumers can store them on a digital wallet, accessed by any smartphone or computer, and even send them to other people. Now that Bitcoin has been defined, it is important to know how it works.
When a beginner uses Bitcoin, it generates a Bitcoin address. You can create more than one address and share the addresses with friends and family so transactions can ensue. These addresses can only be used once. Bitcoin has three main functions (Bitcoin):
Function 1:Blockchain – a shared public ledger which all consumers within the Bitcoin network depend on. It includes and verifies all transactions and spendable balances to ensure both are owned by the spender.
Function 2: Transaction – an exchange of value between Bitcoin wallets. Although transactions are included in the blockchain, Bitcoin wallets keep a “private key.” Private keys prove the owners of the transaction. Bitcoin also uses “signatures” to ensure the lack of alterations to the transactions.
Function 3: Mining – a process which confirms and places the transactions in the blockchain in chronological order. It also bears the responsibility of protecting the neutrality of the Bitcoin network. Transactions are only confirmed when they are compiled in a “block” which includes rigid cryptographic rules approved by the Bitcoin network so previous blocks are not modified. Mining also prohibits individuals from controlling, replacing, or adding blocks and parts of the block chain. In other words, it prohibits theft.
After defining and explaining Bitcoin’s functions, and as the number of people investing in Bitcoin increases, addressing the benefits and drawbacks of this cryptocurrency are crucial.
There are plenty of advantages and disadvantages to investing in Bitcoin (Money Crashers). Let’s first discuss its benefits. As previously mentioned, Bitcoin is not controlled by any political or financial institution. These parties can only confiscate or suspend cryptocurrency either for retribution for political acts or for a criminal investigation.
Bitcoin also has greater liquidity compared to its competitors like Ethereum, IOTA, and Dogecoin. This permits users to keep much of its value when switching to fiat currencies like the U.S. dollar bill. Essentially, out of all the cryptocurrencies, Bitcoin is most like a fiat currency.
Bitcoin has become widely recognized as a payment method, partially because of their built-in privacy protections. It allows users to distance the account itself from the public persona. Unlike using cash or PayPal transactions where protections are scarce, Bitcoin tracks transactions between users but it is difficult to discover who the users are. Individuals or groups who want to mitigate the use of fiat currency should invest in cryptocurrency, since a plethora of sellers accept Bitcoin payments (Microsoft, Overstock, Etsy, AT&T, Shopify). Even though Bitcoin has inexpensive transaction fees, it also eases the process of international transactions because, like credit card payments and ATM cash withdrawals, it does not require international transaction fees.
Finally, Bitcoin’s built-in scarcity component inculcates the currency with inherent value like gold and other metals. This supports its lasting value against fiat currencies and non-scarce cryptocurrencies.
A major inconvenience to using Bitcoin is the lack of policy regarding refunds and chargebacks. Because of its decentralized design, it is extremely difficult for users to dispute transactions. Even though miners are responsible for recording the transactions, it cannot prove the legitimacy of those transactions.
Bitcoin’s reputation as the world’s most popular cryptocurrency precedes itself, so much so that it becomes vulnerable to fraud cases. Examples include the small-scale Ponzi scheme with Bitcoin Savings & Trust to grand-scale hacks such as the infiltrations of Sheep Marketplace and Mt. Gox, which were bilked of hundreds of thousands of Bitcoins. To add, Bitcoin attracts groups and individuals involved with the black market due to its inherent anonymity protections. Ultimately, Bitcoin’s competitors do not acquire nearly the number of users to engender maliciously profitable activity for criminals. If fiat currency were used, such crimes would be prosecuted by law enforcement (see Member Dr. Stephen Castell’s recent article on the subject).
There is the exception of people who are converting to newer cryptocurrencies. Depending on the type of cryptocurrency, these services either eliminate third-party involvement in transactions or use “smart contracts.” These contracts hold the cryptocurrency providers liable for their offerings. If the number of people leaving Bitcoin for another service increases, then its value would certainly decrease.
As previously mentioned, an advantage to Bitcoin is its liquidity and ability to be easily exchanged. However, it becomes susceptible to unpredictable price swings within small time intervals. For instance, after the FBI announced the legitimacy of Bitcoin as a financial service, its value skyrocketed in late 2017 and yet halved at the start of 2018 due to the Mt. Gox hack. These decimated billions of dollars of the market value instantly.
Lastly, Bitcoin mining weakens the environment because it exhausts large quantities of electricity. The source of power for Bitcoin stems from coal plants. When mining occurs, the amount of electricity used directly correlates to the vast amounts of air pollutants released into the atmosphere, creating difficulty for surrounding citizens to breathe.
As the world transitions into a virtual age, and the value of fiat currency remains in flux, people face the crucial decision to either invest in cryptocurrency or continue with their current monetary choices. For those looking to invest in Bitcoin or cryptocurrency, hopefully this blog post provides general insight and clarity for future financial endeavors.
Due to advancements in DNA technology, a 33-year-long murder mystery has finally been solved. The most infamous serial killing case in South Korea, otherwise known as the Hwaseong murders (1986-1991), resulted in the death of 10 women and girls. The true killer, Lee Chun-jae (pictured below), admitted to 30 rapes and 14 murders, 9 of which were part of the Hwaseong murder cases.
What instigated the confession was a recent discovery in DNA restoration technology. This new forensic advancement has allowed police and other government agencies to identify DNA that either could not be identified at the time it was processed or even after long periods of time, as in this case. The South Korean Police conducted a comparison between samples of DNA from a victim’s underwear with the DNA database of prisoners at the penitentiary. The outcome identified Lee as the culprit, who was already facing a life sentence for the last 2 decades for his sister-in-law’s rape and murder. He told the court that he “was surprised he wasn’t caught earlier,” (CNN). Lee also told reporters that he did not try to hide his crimes. Though detectives asked him questions, they were always about other people. The DNA results also confirmed the innocence of the man arrested for Lee’s crimes.
In 2008, a person named Yoon, whose full name cannot be released for legal reasons, was freed after spending 20 years in prison for the rape and murder of a 13-year-old girl, a murder victim from the Hwaseong cases. Last year, the DNA evidence was released, thus confirming Yoon’s innocence. Yoon was granted a retrial, and his lawyers are currently in the process of overturning his conviction. He told CNN, “I want to clear my false accusation, and I want my honor back.”
Suffice it to say, at the time of the murders, there were some discrepancies in the investigation. The Gyeonggi Nambu Provincial Police Agency Chief, Bae Yong-ju, admitted to ABC News that Yoon was mistreated by the police to the point where he made a false confession under coercion. The police involved in the case have issued a public apology to Lee Chun-jae’s victims, their families, and Yoon, a victim of the failed police investigation. Yoon, outraged from being subjected to years of injustice, aspires to continue his life as a free and innocent man.
So, what happens next? Lee Chun-jae will not be facing prosecution for the Hwaseong murders. The statute of limitations on the case has expired. However, he will continue to live out the rest of his life in prison for the rape and murder of his sister-in-law. Thanks to advances in DNA technology, grave mistakes, like those found in this case, will hopefully be reduced.
As we endure almost ten months of living through a pandemic, we can all agree COVID-19 has brought about various changes and challenges. The pandemic has affected every aspect of daily life. Worrying when items will be restocked in local grocery stores, wondering when the next stimulus check will arrive in the mail, and keeping ourselves and families safe from the virus have been at the forefront of everyone’s minds. Although millions of jobs have been lost this year, people who are lucky enough to either have found or kept his/her job now deal with working-from-home. Because the workforce is now conducting a 180 towards online practices, the future of offices in a post-pandemic world is pending.
According to Nicholas Bloom, a Stanford Economist, “we’re in the middle of a structural, seismic shift,” in the workplace. Working-from-home is not a new concept, there are jobs that are designed specifically for remote locations and travel. The problem is millions of people are now forced to adapt to new working conditions in order to slow the spread of the virus, putting the world’s technological advancements to the test. To ensure productivity through a tumultuous time, businesses are instantly tasked with reimagining the role of work and creating a positive environment for their employees. Both individuals and organizations face benefits and drawbacks from this uncontrollable shift.
Some employees love the working-from-home lifestyle. For busy individuals or employees who have families, working-from-home creates flexibility in his/her work schedule, allowing time to complete daily errands and appointments. A surprising “36% (of employees) would choose it (remote work) over a pay raise,” a statistic from Global Workplace Analytics. Working-from-home also allows people to save money on clothes, gas, and food costs that they would otherwise need for the workplace. Lastly, working remotely does not necessarily mean people are tethered to their homes. Computers and smartphones allow people to work from any location, including coffee shops, parks, and even planes. Having the choice of when and where you work is the appealing aspect of working remotely.
While working from home has been successful for some people, it has caused great strife for others. Merging the personal and professional components of life is not an easy feat. This sudden disruption of daily routines adds physical, mental, and emotional anxiety. For those with families, balancing the work load may be difficult with children under foot. To add, the lack of in-person communication creates a sense of isolation and loneliness, which could decrease productivity. To combat these hardships, employees and employers who work-from-home must dedicate some time to maintain his/her health and wellness by exercising, connecting with family and friends, and finding activities that bring happiness to the day.
Although companies who adopt the work-from-home method implement different policies, the general pros and cons seem to be consistent for most businesses. According to Global Workplace Analytics, “A number of states, including Virginia, Georgia, and Oregon offer financial incentives for businesses to adopt telework.” The benefits are not limited to financial incentives. States such as Arizona and Connecticut offer free training to businesses willing to convert to remote work. Also, working from home is environmentally friendly. The rate of office equipment energy consumption is twice that of energy consumption from a person’s home. Businesses save money by participating in the work-from-home method and improving the conditions of the planet one step at a time. Finally, remote work is slowly increasing the hiring pool because it provides geographic diversity that would not have been possible pre-pandemic.
For CEOs, managers, and other team leaders within an organization, being unable to convene at an office can be difficult. The absence of a physical space forces people on all levels of the organizational hierarchy to interact through digital means. Face-to-face communication has been limited to video conferences on sites such as Zoom, Skype and Google Hangouts. Projects, presentations, sales pitches, settlements, and other types of meetings are conducted through a computer or phone, which increases the chance of miscommunication and technological difficulties. This quick transition to telework also increases management mistrust. As many as “75% of managers say they trust their employee, but a third say they’d like to be able to see them, just to be sure,” stated by Global Workplace Analytics. Working from home provides a flexible schedule for employees, but it is also their responsibility to accomplish the required tasks and not abuse the time allotted to do so. Companies must make strides to embrace remote work as part of the new norm by setting and measuring goals for employees.
Ultimately, there are advantages and disadvantages to working from home and the office. Many companies adopt the hybrid model where employees do both, and this is most likely what the future holds in store for the modern-day workforce. For both businesses and employees, the balance between work and personal life has become a priority during the height of the pandemic. The work-from-home model not only relieves some of the stress imposed by the pandemic but allows people who work in non-online industries, such as healthcare and construction, to safely tend to their job. Whether businesses go back to the office or not, it has been reassuring to know that many industries and individuals have the technological capability and resources to work from home during a global pandemic.
On October 20th, 2020, The United States government, along with several states (AR, FL, GA, IN, KY, LA, MS, MO, MT SC, and TX), filed an antitrust lawsuit against technology company, Google LLC, for illicitly continuing monopolies in general search services, general search text advertising, and search advertising. Google has been accused of maintaining control of these markets through exclusionary practices, which prohibits the expansion of competition throughout the internet technology industry. The basis for this accusation is Google’s alleged violation of Section 2 of the Sherman Act, 15 U.S.C. § 2, which bans monopolies in trade and commerce. Along with previous antitrust cases, it is important to review the nature of the lawsuit. Since Google is being accused of antitrust in several areas, the case’s foundation will be broken up into two sections.
1. General Search Services: Within the last twenty years, Google has transitioned from a new start-up to one of the richest companies on Earth, making as much as $160 billion a year. Because search engines are dispersed throughout a variety of devices, such as smartphones, tablets, and laptops, user search queries in the United States have surged in the last decade. Search engines are the most effective when they are set as the default. For example, if a consumer uses a Dell, they are more likely to have Bing as the default search engine, unless the user changes it to Google, Firefox, etc., which rarely occurs. In addition, Google pays billions to a plethora of distributors spanning from device manufacturers, wireless carriers, and browser developers to set their search engine services as the default. Because Google pays companies like Apple, Motorola, Mozilla, AT&T, and UCWeb to secure their search engine as the default, along with the lack of users changing their default engine themselves, the lawsuit alleges the deals made by Google were intended to eliminate competition among other search engine providers. In fact, 90% of all generated-search engine queries have been searched through Google. It does not cost anything to search online. So, it begs the question: how were they able to make billions of dollars?
2. Search Advertising/General Search Text Advertising: Google utilizes consumer information and search queries to sell advertising. Since Google is the default search engine for various devices, they receive almost $40 billion from advertisers to place ads on their search engine results pages (SERP). Because Google receives 90% of search engine traffic (that’s billions of eyeballs on tailored ads), these deals create difficulty for smaller rival search businesses to compete and incentivizes advertisers to stay with Google rather than switching to another company that cannot perform on such a grand scale. The services Google provides require intricate algorithms which collect vast amounts of data used to tailor content based on a user’s search query. For example, if you search holiday discounts for a Keurig coffee maker, you might see an ad for the exact search entry two days later, which is what advertisers want. These deals ultimately engender a continuous cycle of anticompetitive behavior from Google and thwart potential competition, giving the United States government and various states another reason to issue an antitrust lawsuit.
With the nature of the case in mind, Google’s ever-growing power is concerning. Is Big Tech too influential in the economic and advertising sectors? Shouldn’t consumers be aware of Google’s seemingly anticompetitive tactics? As the world continues to enter a digital age, how will this case change the ways in which internet companies conduct business ventures? Stay tuned as our Experts.com Members give their input on the subject in Part 2: coming soon.
Mental health professionals are being targeted by a failure to appear scam. The first scam we’ve seen targeting expert witnesses.
This is the first blog post I’ve written that falls directly into the “public service announcement” category. Yesterday morning, I saw an article by the Washington Post where the author describes a telephone-based scam, where perpetrators pretend to be police officers.
The story grabbed my attention because the suspects have a little deeper knowledge about prospective victims. They know enough to know you are likely to act as an expert witness.
The caller, impersonating a police officer, claims the victim failed to appear at a court hearing in which they were subpoenaed to testify as an expert witness. The criminal claims to be an officer and provides the real name of an an officer employed at the local law enforcement agency, which can be confirmed online. The victim is told they have a civil option to pay a fine and avoid jail time.
As recounted in the Washington Post article, “The problem, the alleged detective stressed, was that because of the coronavirus, people couldn’t come into police headquarters to settle such matters. He said she needed to purchase “MoneyPak” electronic cash transfer cards — at one point transferring the call to his purported supervisor, who also had assumed the name of a real Montgomery officer.”
You need to start asking questions at this time! Have them send you some documentation in the mail. Have them personally serve you the paperwork. Do not get frightened by someone claiming to be an authority figure over the phone. That’s their goal! Get you nervous and acting irrationally.
The option to pay a fine should immediately get your attention. Not to mention this silliness of paying with “electronic cash transfer cards.” There is no reason you shouldn’t be able to pay a fine with a check or credit card.
If you are accused of missing are accused of missing a court hearing. You should know that police officers, detectives, investigators, are not usually those responsible for collecting fines. Generally that’s a different department.
Scam Has Been Taking Place for a While:
Although this fake police officer scam targeting mental health professionals, took place in Maryland. However, in preparing to write this post, I did a little research and found that the Los Angeles Police Department (LAPD) had also warned about this type of a scam back in 2019. Here is their press release on the subject. The LAPD specifically mentioned therapists and psychologists as more likely to be targeted:
“It should be noted that many of the victims are current/former employees in the mental health industry. In each of these incidents, the caller claimed that the victim missed an appearance as an expert witness in a court case. Therapists and psychologists should particularly beware of the scam. You can get help determining the authenticity of a call by contacting your local police station.”
To say 2020 has been a whirlwind of a year would be an understatement. After enduring a global pandemic, the arrival of murder hornets, Australian and West Coast wildfires, and so on, it appears the world can’t catch a break. For the United States in particular, politics has added fuel to the fire. The seemingly exhausting nature of the country’s current political environment is one that cannot be ignored, as the election in November is quickly approaching. The future Commander in Chief of the nation is in the hands of voters from two extremely divided political parties, the Democrats and Republicans. However, the outcome of the recent presidential debate lacked the information needed for voters to make an important decision: who they want to take the Oval Office.
On September 29th, the first presidential debate for the 2020 election took place at the Sheila and Eric Samson Pavilion in Clevland, Ohio. Assuming the election will be a close race, this has certainly been the most anticipated debate in American history. Republican nominee and current President of the United States, Donald Trump, and Democratic nominee and former Vice President under the Obama Administration, Joe Biden, battled it out face-to-face on the debate stage with Fox News Sunday anchor, Chris Wallace, as the moderator. Although the set topics included the coronavirus pandemic, economy, systemic racism, and healthcare, anything but those subjects were addressed. This may not have given voters much to work with, however, linguists, psychologists, and body language experts had a field day analyzing the candidates’ performances. Let’s discuss the verbal and nonverbal cues that made this debate, in the words of body language expert, Patti Woods, “painful to watch.”
The policies Trump and Biden represent are not the only factors that distinguish these candidates. Both nominees exemplified different behavioral approaches regarding how they answered Wallace’s questions and responded to their opponent. Some experts believe Trump’s strategy was based on anger. Woods told The Independent, “Anger is the strongest persuasive emotion… His choice to be on the attack, nonverbally he did that very specifically by looking at Biden when he was interrupting and talking over him and turning his upper body toward him.” She also claimed the painful aspect of the debate was Trump’s bully-like behavior, which is not typically seen during debates of such stature as those held for elected officials. Trump’s interjections are also an example of Face-Threatening Action. Brian Larson, an associate professor at Texas A&M University School of Law, told Inverse, “It’s (Face-Threatening Action) a specific type of interruption intended to diminish social power.” The purpose of these interruptions is to not only accelerate the pace of the debate, but to cause Biden to retract, clarify, and correct statements. Other experts believed Trump’s demeanor made him look like a strong leader. Lillian Glass, a body language expert, told Boston Globe, “His body movements matched his emotions and what he had to say… there was not a lot of levity.”
Biden, on the other hand, had a much more welcoming and laid-back approach according to experts. Woods stated that Biden’s decision to look at the camera and address the audience with a smile could be seen as self-control. Other experts, like Chris Ulrich, a behavioral body language expert, believed his direct statements toward the camera was his attempt to make a connection to voters and establish a “transference of power” (Boston Globe). Larson noticed Biden’s language was casual. For instance, when the debate started, Biden greeted President Trump by saying, “How you doing, man?” This happened again when Trump interrupted Chris Wallace and Biden exclaimed, “Will you shut up, man?” According to Larson, Biden’s informal language helped abate the perceived power dynamics that were present due to Trump’s interjections and his role as President. Glass thought Biden’s decision to directly speak to the viewers was inappropriate. She believes debaters should be looking at their opponent or the moderator. Based on this notion, Biden’s actions could have displeased many viewers.
So, based on body language alone, which presidential candidate won the first debate? Well, every expert has their own opinion and interpretation of what occurred. According to Glass, Trump won the debate. Trump’s disposition was in sync with his body language. In moments when he needed to be serious, his physical stance and gestures correlated with his verbal statements. Although it reads as aggressive and obnoxious, Trump was unwavering in his decisions to argue, interrupt, and defend. Glass felt Biden failed to present himself as a leader because his gestures were more rehearsed. In moments when Trump refuted him, for instance, when the Green New Deal was discussed, Biden would smile during confrontation and used coached motions like pinching his thumb and finger to demonstrate a point. However, Woods suggests that Biden won the debate. Unlike Trump, Biden established a connection with voters by making direct eye contact with the camera. He explained his policies and plans to the American people, the 328 million citizens responsible for electing the 46th President of the United States of America. Because Trump was constantly interrupting Biden, along with his lack of rapport with viewers, he was perceived as a bully.
Now that America’s disappointment in the first presidential debate is common knowledge, and considering all divisive information has arisen in the meantime, it will be interesting to see how effective Trump and Biden’s communication skills will be during the final debate this Thursday, October 22nd, 2020.
Before Nikola and the Trevor Milton scandal, there was a prominent blood-testing startup called Theranos. Its founder, Elizabeth Holmes, currently faces a criminal fraud trial.
If you’ve been tuning into business news recently, the latest scandal with Nikola, a electric-powered truck manufacturer, and its founder, Trevor Milton, is no surprise to you.
For those who have not been following along, a quick summary is as follows: Nikola (NKLA) recently became a publicly traded company alleging they had hydrogen fuel cell (battery) technology that would revolutionize the trucking business. The stock did well after IPO. Nikola then did a multi-billion dollar deal with General Motors. The stock went higher. A few days after the GM deal, a short-seller released a report that accused them of a being an intricately constructed fraud. The founder, Trevor Milton, contested the accusations on social media and asked for time so he could rebut all of the allegations. Within a couple of days he went silent, was removed as executive chairman, and deactivated his social media accounts. It has been widely reported that both the SEC and DOJ are conducting investigations related to his actions and claims as founder and executive chairman.
I share that story because some news agencies have suggested Trevor Milton’s story is similar to that of Theranos founder and CEO, Elizabeth Holmes. Ms. Holmes is now facing a criminal fraud trial and she is the focus of our our post today. Stay tuned next week for some further discussion on the issues surrounding Nikola.
Elizabeth Holmes founded a privately held biotechnology company called Theranos. The company intended to revolutionize blood tests, with just a drop of blood. No more needles and vials, just a small drop of blood, and the tests results would be available rapidly. Ultimately, they failed to deliver tangible results and led consumers to believe false promises. After receiving more than $700 million in private investment, the company began falling apart.
In Spring 2018, Holmes was charged with fraud by the SEC, as reported by Bloomberg. This being a civil action, Holmes settled it without admitting any of the allegations. The settlement required her to relinquish her shares to the company and abstain from being an officer or director of a public company for a period of 10 years. There was also a fine, according to Barron’s. To the best of my recollection, Ms. Holme’s settled with the SEC on the same day she was charged.
In the Summer of 2018, the US Attorney’s office filed charges against Holmes’ for conspiracy and wire fraud, as reported by CNN. This criminal indictment is the inspiration for this blog post.
For more than 2 years, we’ve followed the developments in the criminal prosecution of Elizabeth Holmes, wondering if it would lead us to an interesting analysis from an expert witness perspective. In September of 2020, I found this article from the New York Daily News. It seems Ms. Holmes is preparing for the use of a “mental disease or defect” defense.
More specifically, the article from the New York Daily News, indicated the judge had assigned a neuropsychologist and psychiatrist to conduct a two-day, 14 hour evaluation of Ms. Holmes. Additionally, this evaluation is to be recorded. Now, I had never heard of psychological evaluation being this long and I worked in the mental health field for years before joining Experts.com.
To the best of my knowledge, I had not heard about the “mental disease or defect” defense since law school. I remembered it as a mitigating factor to a crime. Something we learned about when we learned about defenses and factors related to defenses.
So, I did what I usually do with these blog posts, and reached out to the experts. This time, I thought it would be good to get insights from a federal public defender and a psychiatrist.
First, let’s see get a view of the legal opinion…
Analysis from Federal Defense Attorney, Diego Alcalá-Laboy:
Diego Alcalá-Laboy is a criminal defense attorney with his own practice Defensoria Legal, LLC, in Puerto Rico, where he represents federal criminal defendants and advises startups. He is also an adjunct professor at the Inter-American University, School of Law and teaches the Federal Evidence and Federal Criminal Procedure courses at the University of Puerto Rico Law School’s Federal Bar Review.
Nick Rishwain: Why would one use a defense of “mental disease” and what impact might it have on the case?
Diego Alcala: A prosecutor must prove that a defendant intended to commit an act (mens rea), and that he committed the act (actus rea). And most crimes require that the defendant acted intelligently, knowingly, or willfully, and on some occasions recklessly or negligently. The type of “mens rea” a crime requires is defined by Congress and the interpretations given by the courts. On some occasions, an offense may not even require a mens rea, such as with strict liability offenses.
Crimes may have different elements, and a prosecutor may have to prove that the defendant had the required mens rea to commit each element of the offense. If the prosecutor cannot prove this, the defendant may be found not guilty.
Congress also recognized that a defendant may show that because of a medical defect he was unable to appreciate the nature and quality of his or her acts because of a severe mental disease or defect. After the John Hinkley trial, Congress amended its statutes and eliminated the affirmative defense of diminished capacity but allowed a defendant the possibility to attack an element of an offense because of a mental condition.
This is a lot harder than it sounds. The Courts are the gatekeepers of the any scientific testimony intended to be presented at trial. Therefore, whenever a defense of mental defect is offered by a defendant, the Court must ensure that the evidence offered is grounded in sufficient scientific support. This scientific evidence then must be scientifically sound and must also show that the medical condition negates mens rea of an element of the offense. So, a defense of mental defect, if grounded on scientific basis, and shows that it negates an element of the charged crime, will clear the defendant from a particular case.
NR: Have you ever seen a “mental disease” defense used in a criminal fraud matter?
DA: I have never seen a mental disease defense presented before. But I did find some cases where the defense tried to introduce this type of evidence but was ruled inadmissible because it did not satisfy the Court that the proffered evidence: a) was based on sound scientific principles, or b) even if it was based on sound principles, it failed to negate mens rea for the element(s) of the offense. In fraud cases, a defendant is accused of committing some type of false representation. It follows that the evidence of mental disease must show that if his/her medical condition can be logically connected to a subjective belief that his/her assertions were not false, baseless, or reckless vis-a-vis the truth. I have not found a fraud case in which the defense has been able to overcome this burden.
NR: If it is established that Elizabeth Holmes is suffering from “mental disease,” can she still be held criminally liable for her actions?
DA: If a defendant presents a successful mental disease defense, the federal law states that she will be found not guilty. But a finding of not guilty does not necessarily mean that she is free to leave. A determination of not guilty by reason of mental defect will then place a defendant in a “suitable facility” and may be release only after showing that she is no longer a threat.
NR: Does a “mental disease” defense have much success in federal criminal trials?
DA: As mentioned, I have not found a successful case, and primarily the difficulty lies in the very narrow type of cases that may meet the discussed admissibility standard. Even if she can get this evidence into trial, it is still up to the jury to accept this defense.
Now that we have some idea of the application of the law for fraud in federal criminal cases, we need to review the science as outlined by Mr. Alcalá.
Analysis from Forensic Psychiatrist and Expert Witness Dr. Sanjay Adhia:
Dr. Sanjay Adhia is triple-Board-Certified in Forensic Psychiatry, Brain Injury Medicine, and Psychiatry. Dr. Adhia serves as a Psychiatrist and Brain Injury Medicine specialist at TIRR Hermann Memorial, a Rehabilitation and Research hospital treating those with brain and spinal cord injuries and psychiatric elements of their injury and recovery. In private forensic practice he conducts Independent Medical Examinations (IMEs), and renders his opinions by report and testimony. Dr. Adhia serves on the faculty of McGovern Medical School at UTHealth. You can visit his website at: forensicpsychiatrynow.com.
Nick Rishwain: According to the psychiatric community, what constitutes “mental disease” and “mental defect?”
Sanjay Adhia, MD: These are more legal terms rather than actual formal psychiatric definitions.
According to Merriam-Webster, the legal definition of “mental disease” is “an abnormal mental condition that interferes with mental or emotional processes and internal behavioral control and that is not manifest only in repeated criminal or antisocial conduct”.
Examples would include Schizophrenia, Schizoaffective Disorder and Bipolar Disorder which are considered Severe Mental Illness (SMI). These conditions may lead to psychiatric hospitalization. The conditions maybe associated with and loss of touch with reality and a lack of volitional control.
“Mental defect,” on the other hand, is defined by Merriam-Webster as a “an abnormal mental condition (as mental retardation) that may be of a more fixed nature than a mental disease”. “Fixed” disorders would include Intellectual Developmental Disorder (IDD; formerly known as mental retardation), Autism and Brain Injury. According to this definition, Antisocial Personality Disorder (ASPD) would be excluded. ASPD is marked by a tendency to lie, break laws, and act impulsively. It shares some features with psychopathy or sociopathy. A number of states do not permit the use of ASPD in the insanity defense. Allowing ASPD would have unintended repercussions. For example, it could potentially permit a defendant like Ted Bundy or Jeffrey Dahmer to avoid prison.
NR: In the court order, it limits the evaluation of Ms. Holmes to a 14 hour, 2-day, psychiatric examination. Is this out of the ordinary in a criminal matter?
SA: There is a wide range of exam times in criminal cases. It would depend on a variety of factors including the type of case, the jurisdiction, the funding available and the severity of the charge. Assessment time in a misdemeanor will not be identical to a capital case. Ms. Holmes’ case is not a capital case, but it helps to understand differences in how long the examination might take. The exam time in a Competency to Stand Trial for a misdemeanor trespassing case would likely be under two hours. I have seen some examiners spend 30 minutes for the interview in such cases. The other extreme would be Capital cases which could go over 8 hours or several days; this is especially true if neurocognitive testing is required, which can take an entire day.
Again, in a capital case the threshold and the stakes are very high—especially in death penalty cases that often go to the appeals court.
In misdemeanor cases, you may have a single mental health expert and the findings may be accepted without the need for an opposing expert. In Capital cases, the defense itself may retain several mental health and other medical experts (i.e. Fetal Alcohol Syndrome experts). In the Holmes case, the 14 hours is to be shared between a forensic neuropsychologist and a forensic psychiatrist.
As it is a high-profile case, it is possible that the court may allow additional funds or there maybe a willingness of the expert to work within a budget.
It is my experience that the examination in insanity cases take more time than other types of cases as you have to elicit a detailed account of the crime from the defendant and then determine the mental state at a time in the past and consider malingering (lying for secondary gain—like a lesser sentence). I suspect in the Holmes case, it is likely the charges are not limited to one circumscribed incident so it could take additional time. It is worth noting that time spent reviewing records and preparing a report could exceed twenty hours or more.
NR: What information might you need to establish or rebut an insanity defense?
SA: In addition to interviewing the defendant, it would be helpful to review medical records, legal records along with police records and videos. I often will interview collateral informants as well. In Ms. Holmes’s case there maybe, media accounts, if admissible, as well as financial records and corporate documents. Of course, an expert would review the other expert witness reports. Records in a violent crime could include an autopsy, or blood splatter expert reports, for example. In the Holmes case, there may be a forensic accounting or fraud expert report. Other sources of data could include polygraph testing, school records and employment records.
NR: In the Holmes case, the defense has retained a trauma expert. Is it common to successfully assert an insanity defense in cases of PTSD?
SA: Insanity defenses are more commonly associated with other diagnoses that are considered to be more severe forms of mental illness such as schizophrenia, bipolar disorder and IDD because they have a different impact on decision-making and regulating behavior. Although many individuals with PTSD do suffer with severe symptoms, they are generally able to maintain awareness of the nature of their acts and appreciate the wrongfulness of such acts. In jurisdictions that allow for the volitional prong, individuals with PTSD are generally considered to be able to behave lawfully. Of course, there are cases where PTSD is successfully asserted as an insanity defense. In cases where the defense attorney realizes the PTSD does not lend itself for an insanity defense, they may successfully utilize it for sentence mitigation.
United States v. Bennett,29 F. Supp. 2d 236 (E.D.Pa. 1997), aff’d 161 F.3d 171, 183 (3d Cir.1998), cert. denied, 528 U.S. 819, 120 S. Ct. 61, 145 L. Ed. 2d 53 (1999)
TikTok has been the most downloaded app globally in 2020. Although it has existed since 2018, TikTok surpassed 2 billion downloads back in April, during the apex of the new socially-distanced reality engendered by the pandemic. The ability to share and create content such as comedy skits, dance challenges, and lip-syncing clips, has appealed to various age groups around the world, especially teenagers. However, TikTok has been at the center of controversy for raising cyber security concerns not just here in the United States, but around the world.
The problem with TikTok is twofold. The first issue is the app is owned by a Chinese company called ByteDance. Because ByteDance is not American-based, it does not follow U.S. federal and state consumer privacy laws. TikTok announced the data collected by American users is backed-up in Singapore, which is not subject to Chinese law. Though true, it is possible the Chinese government could pressure ByteDance to relinquish its user information.
Second, TikTok has a large accumulation of data related to the types of videos Americans watch and post. Because it has turned into an important platform for political activism, people are worried the Chinese government could influence public opinion and control speech. For instance, according to both The Guardian and The Intercept, last year, TikTok company officials told their employees to censor content considered sensitive to Beijing. TikTok claimed their policies were outdated when the reports were released. As a result of this incident, they established a “transparency center” so security and technology experts from around the world can observe their policies.
Despite TikTok’s official statement, President Donald Trump issued an Executive Order in August declaring the prohibition of all business with ByteDance. Unless ByteDance announces a plan to sell TikTok, the app will be banned on September 29th, 2020. Several American agencies and companies, such as the U.S. Army and Wells Fargo, have been proactive, requiring servicemen and employees to uninstall the app in response to these security concerns. Other countries, like India, have followed suit, banning the app altogether.
Many people, including computer security experts, believe banning the app in the United States would be an extreme course of action. Not only would it invite questions about censorship in a free country right before an election, but it would affect various companies here in the U.S. who use the platform for marketing purposes. A solution technology experts have mentioned is to implement policies for protecting consumer privacy and measures to minimize data misuse from companies around the world. Currently, with the exception of a few state laws, the responsibility of American privacy and data sharing belongs to companies such as TikTok, Facebook, and Twitter.
On September 14th, 2020, ByteDance accepted Oracle’s proposal to be their new technology provider. This means Oracle would be held accountable for protecting all user information collected through TikTok. Although this deal is pending approval by the U.S. government, this would keep businesses invested in TikTok afloat and allow up to 100 million users to continue posting creative content. Tresury Secretary, Steve Mnuchin, told CNBC that the government will be reviewing the proposal this week, as their top priority is to keep American user data from the Chinese Communist Party.
Four days later, the U.S. government announced the removal of TikTok and fellow Chinese app, WeChat, from American app stores supplied by Apple and Google. Distribution, updates, and maintenance will be expelled for purchase unless the Trump administration, TikTok, and Oracle can close a deal by September 20th. Commerce Secretary, Wilbur Ross, told Bloomberg WeChat would be shut down for practical purposes, but Americans could still use the app for payments in China and talk to loved ones overseas. He added TikTok’s official shut down is scheduled after November 12th if the deal with Oracle falls through.
On Monday, September 21st, 2020, President Trump announced his approval of the deal between Oracle and TikTok. As a result of the ongoing proposal, Oracle and Walmart will share a 20% stake in TikTok Global, a new company headquartered in the United States. ByteDance will own 80% of TikTok Global and allow Oracle to review its source code. Ceding algorithms and other technologies was not included in the deal. Allowing Oracle to review the source code is still not fool-proof as ByteDance could easily instruct the code to send data back to China in secret. Trump’s approval has postponed the ban for now, but the removal of TikTok through American app stores is still in effect. As relations between the United States and China remain tumultuous, the final outcome of the TikTok debate remains to be seen.
Remote depositions appear to be growing. As an expert witness, what should you do to improve your presentation and performance to maintain credibility and authority?
As more professionals work from home, remote depositions will continue to rise in popularity and usage. But, the extent of the rise is hard to tell since there is a lack of any hard data on the subject. One of our contributors, Isaiah Leslie, has provided some anecdotal information on the subject. We know court hearings and administrative meetings are taking place remotely. In an article from the Fort Worth Star Telegram, we learn about what may be the first remote jury trial in the U.S., which occurred in Texas. With an increase in remote hearings, depositions, and even jury trials, we wanted to give you some information about presentation and performance as an expert witness in remote deposition.
There have been an abundance of articles discussing remote depositions, but none of them appear to cover best practices for the deponent and, relevant to Experts.com members, the expert witness. Instead, the articles discuss the law permitting remote depositions; the local rules to be followed; agreements between lawyers about sharing of discoverable information; procedures for exhibits; whether the deposition is going to be taken by video conference or the deposition is being video recorded; and operation of several of the remote video platforms. The information is important for all parties to a litigation, but none of it helpful to the deponent.
To this end, I had to do some digging and contact a bunch of folks for their insights. We received some great feedback from court reporters, court videographers, and live video marketing professionals. Below is a summary of suggested best practices for expert witnesses before and during a remote deposition, focusing on presentation, apparel, lighting, audio, video, and overall performance.
Increase in Remote Depositions:
One of our contributors, Isaiah Leslie, a co-founder and partner at Regal Court Reporting, provided us with the best data on the increase in remote depositions from his company’s personal experience. In March of 2020, only 2.6% of their depositions were remote. By April, all of their depositions were remote, increasing by 550%. Although remote depositions have not outnumbered their previous in-person deposition numbers, as Isaiah noted, the adoption is still significant.
The increase in remote depositions makes sense, given the shelter-in-place orders throughout the country. Many of those who adopted remote deposition by necessity have discovered its advantages. By no means am I suggesting remote depositions would replace in-person depositions entirely. However, as legal professionals become more comfortable with videoconferencing technology, it’s reasonable to anticipate continued growth in remote depositions even after COVID-19.
Legal system participants are likely to realize, if they have not already, the value of videoconferencing. It is convenient for all involved, as there is no need to travel to the deposition location. Reduced travel should lower litigation costs as parties will no longer have to pay for travel time and costs (for lawyers and expert witnesses). Most importantly at the present time, it provides the added benefit of being socially distanced.
With this expectation remote depositions will become more prevalent, even post-COVID-19, here are the suggestions from our contributors, to help you as a deponent, give your best presentation and performance.
Court Reporter Suggestions:
Isaiah Leslie and I have become friendly on Twitter, which for those who know me, is where I’ve made a significant number of professional relationships. Isaiah brought his partner and wife, Stephanie Leslie, into the conversation so we can get some outstanding suggestions direct from a court reporter who regularly participates in depositions.
As with other past blogs, I provided a variety of questions and Mrs. Leslie provided some outstanding responses (some edited for brevity and clarity).
Nick Rishwain: Have you experienced an increase in remote/virtual depositions during COVID-19?
Stephanie Leslie: We have certainly seen more remote depositions than usual, but unfortunately most law firms are still not jumping on board fully quite yet for a variety of reasons. One being their lack of comfort with the technology aspect of things. Once they try it, they typically schedule more after that. It’s just making the plunge.
NR: Based on your experience doing in-person video depositions and remote depositions, have you identified any best practices for deponent performance?
SL: The most crucial thing with remote depositions is abiding by the admonition to not talk over others. As a working reporter myself, I can attest to the fact that speakers talking over each other is always a nuisance and makes my job exponentially harder, but in remote depositions it is absolutely critical because remote platforms, such as Zoom, act similarly to a speakerphone, and it can only choose one voice to allow through the system, so if there is simultaneous speaking, I can usually hear no one. And then, to add insult to injury, if other speakers are talking, I cannot successfully interrupt and remind everyone to speak one at a time because no one can hear me either. I have found that even though it feels very tedious to go slowly and methodically, it actually makes the deposition go more quickly and smoothly.
NR: My customers are concerned with coming across as credible, knowledgeable, professional and authoritative in their field. What do you recommend for best remote deposition performance?
SL: I have taken several expert depositions recently, all remotely, and I don’t think the virtual aspect of the deposition makes much of a difference. I felt like it was any other expert deposition. It was very clear to me which experts were knowledgeable and confident about the subjects upon which they were opining, and others were obviously not as much. I think a great CV and clear opinions backed by evidence still come through clearly to all observers.
NR: Any suggestions on apparel, lighting, audio/video setup?
SL: I have seen some sharp solid-colored virtual backgrounds created with an expert firm’s logo placed in the top corner just to the side of the witness, and it is very professional looking and memorable while not detracting from the substance of the proceeding. Apparel — I suggest still making sure you’re completely professional on top. What’s on bottom is up to you! I use an inexpensive cube light to help illuminate my face, but if the room is well lit (not too much back light), I don’t think it’s particularly necessary. Audio is the most important thing. Please test your connection and audio quality beforehand!
NR: Any further suggestions I may not have asked?
SL: As usual (but even more important with remote), if you are able to provide any spellings or technical words to the stenographer before the deposition, that is always appreciated. We usually come into the case with little to no context on the facts and your background and role, so anything you can assist with along the way is invaluable!
Legal Videographer Suggestions:
Isaiah, continued to provide me with excellent access to his team and we got some outstanding feedback from Sean Malone, of Malone Video, who works primarily with Regal Court Reporting.
The same questions provided to Stephanie Leslie were also sent to Mr. Malone. His different experiences from a videographer perspective are equally beneficial to the expert witness.
Sean answered the questions in a slightly different format, which have been edited for brevity and clarity.
Nick Rishwain: Have you experienced an increase in remote/virtual depositions during COVID-19?
Sean Malone: Definitely. Though overall some attorneys are still hesitant to go remote, others have been willing to test, and even embrace remote depositions right now, due to the quarantine. As a legal videographer, before the quarantine I had done exactly zero remote depositions. Since the quarantine, I have done at least 2 to 3 per week, on various platforms, and all for clients that were mainly accustomed to in-person depositions before COVID-19.
For the following, questions 2-4, Sean answered the questions in aggregate. So, you don’t have to scroll up to find those questions again, I’ve added them below:
NR: Based on your experience doing in-person video depositions and remote depositions, have you identified any best practices for deponent performance?
NR: My customers are concerned with coming across as credible, knowledgeable and an authority in their field. What do you recommend for best remote deposition performance?
NR: Any suggestions on apparel, lighting, audio/video setup?
SM: As a legal videographer, the things that matter in an in-person deposition are the same things that matter for a remote deposition. For example, is the deponent well lit? Are they centered in frame? Can they be clearly seen and heard? I’d recommend a similar approach for everyone involved in a remote deposition: identify your best in-person deposition practices and translate those to the medium of video conference.
Just like in real life, the witnesses I’ve observed that come off well are the witnesses who:
Are professionally dressed.
Are well mannered/aware that they are the focus of the deposition and the video record.
Listen to and directly answer attorney questions.
One note on that last one: Just like in real life, we all know that deponents should let the taking attorney finish their question before starting to answer, and also pause a little so that the opposing attorney can get in their objections… But this is especially important during a remote deposition, because of that notorious split-second delay present in all video conferencing platforms.
To present yourself well and make the videographer love you, you can:
Make sure you are well lit, and not heavily backlit.
Make sure whatever is in the background behind you is relatively neutral and not distracting (in other words, maybe take that Backstreet Boys poster down before logging on).
Make sure the area around you is tidy and free from clutter.
Make sure the camera built into your computer is as close to your eye-level as possible. If the camera is too low, like on your lap for instance, everyone will view you (and the video record will capture you) from an unflattering, upward angle. Eye-level or at least face-level is the best idea for a flattering shot of you.
Ideal framing is you in the center of the frame, with your torso and head visible in frame, with a little bit of headroom on top (headroom is the small space between the top of your head and the top of the frame). See picture:
Make sure you are joining the video conference from a reliable device that has a decent camera and microphone built in.
Make sure that device is charged!
Some additional tips on your Internet connection. So that your testimony can be captured optimally by both the court reporter, and the videographer, make sure your Internet connection is as strong as possible. Office internet is more robust than home internet, but if you are at home, you can try:
Connecting your device via Ethernet cable rather than WiFi.
If you cannot connect via Ethernet cable, choose the spot in your home with the strongest WiFi signal.
Ask other members of your household to refrain from moderate or heavy Internet use that day (e.g. have them avoid streaming TV, playing online games, etc.)
NR: Any further suggestions I may not have asked?
SM: I always like to say that everyone in a deposition has a job to do. Therefore, I try to help others do their jobs well, by doing my job well. I think that approach can be helpful no matter what your job is!
As we feel this is going to be a growing experience for witnesses and expert witnesses, we wanted to create a blog post that is truly helpful to your presentation and performance. So, we brought in one more voice to help you nail that remote deposition!
Live Video Marketing Professional Suggestions:
As some of my readers know, I’ve been doing live video since about 2015. However, I do it as a hobby. Our next contributor does it professionally and has written a book on the subject. I’m just lucky enough to know her and call her a friend. Jennifer Quinn, is a leading consultant on Internet live-streaming. I reached out to her and asked her for her input regarding presentation and performance.
Here are the suggestions provided direct from Jenny. In this instance, I asked questions more generally and Jenny gave me us some outstanding suggestions, all of which should be considered for remote depositions.
NR: I’m looking for suggested best practices. How would you want an expert witness to be prepared for remote deposition? What best practices do you suggest?
Jennifer Quinn: The fastest way to build trust with someone is to show up the way they expect you to show up. Traditionally, as an expert witness, you would arrive, dressed professionally, sit upright, and be fully prepared for the deposition.
The question most expert witnesses have today is how to transfer that same level of authority, and trust one would have face to face or in-person to a video format.
There are a few quick and easy ways to convey instant authority and credibility when preparing for a video deposition.
Pay attention to your background – be sure it conveys professionalism.
Dress the same way you would dress if you were attending court in person.
Make virtual eye contact with the video viewers by looking directly into the lens of the camera. Yes, this will feel awkward; however, it is possibly the most crucial skill you can master if you want to instantly build trust in this new era of video. Looking directly into the lens of the camera simulates eye contact and conveys authenticity more powerfully than anything else you can do when recording video.
In my book, I reference the need to pay attention to L.A.V.S.: Lighting, Audio, Video, Stability.
Daylight – sit in front of the window with the light shining in on your face.
Ring light – clips on to your phone.
Box lighting – home office studio setup.
Turn off the overhead lighting in the room.
Earbuds with built-in mic.
Cell phone camera.
Keep the lens camera at eye level.
Look into the lens.
Prop phone up – at eye level (think books, boxes, etc.).
Tripod or mount.
Desktop/laptop – don’t bump desk or table.
There you have it. Four different individuals telling you how to up your remote deposition game as remote depositions have drastically increased in the last 90 days.
Throughout shelter-in-place, many lawyers and parties have experienced the benefits of remote depositions. It has proven both convenient and cost effective. We do not expect the trend in growth to wane any time soon. If anything, we could be witnessing a completely new shift in how the legal system communicates.