Posts by Rachel Wilkes Barchie

Rachel Wilkes Barchie's litigation practice covers a wide range of employment, intellectual property, and general business matters. Ms. Barchie defends employers against wrongful termination, discrimination and harassment, and wage and hour claims. She also prosecutes and defends cases for copyright and trademark infringement, breach of contract, fraud, and business torts. Ms. Barchie has also successfully prosectured real estate cases involving claims for commercial unlawful detainer, construction defect, fraudulent conveyance, and breach of lease. In addition, Ms. Barchie dedicates a significant amount of time to pro bono and community work. She is a member of Greenberg Glusker’s pro bono committee and currently leads a team of Greenberg Glusker attorneys who take turns presenting a monthly workshop and clinic to litigants in Small Claims Court, in conjunction with the Los Angeles County Bar Association, Bet Tzedek, and Southwestern Law School. Previously, Ms. Barchie successfully represented a transgender person from Mexico seeking asylum. Ms. Barchie is also Vice President of the Board of Directors of Break the Cycle, the leading national nonprofit addressing teen dating violence.

At Least The Unicorn Won’t Sue You

When not writing about the legal issues raised by my favorite TV shows, most of this blogger’s Law Law Land blogs have involved either employment law or social media issues.  So you can imagine my sheer delight when the news of Pax Dickinson’s now-infamous Twitter account emerged, since it is a perfect disgusting marriage of these issues, as well as a cautionary tale to employers and employees alike.

In a nutshell, this is a story about an employee who was fired for writing offensive Tweets.  But the reason this made national news is that Dickinson was Chief Technology Officer of the website Business Insider, which has over 23 million unique views each month and top executives from other dotcoms.  In other words, these guys know a little something about the Internet and social media.  And yet, Dickinson was tweeting his biased worldview for all to see—including his real name and title at Business Insider—for four years (and more than 10,000 Tweets), and the company did nothing until Dickinson was outed by Valleywag’s Nitasha Tiku and the story went viral.  What’s more, at least one of Dickinson’s high-up colleagues previously knew about his Twitter shenanigans and even blocked Dickinson on Twitter.

Continue reading the full story . . . »

Warning to Good Wife Fans: Fake Product Reviews Are Less Legal Than They Appear

Hello, Law Law Land readers!  I took a blogging hiatus during the latter part of my pregnancy and early months of new parenthood, but I’m back.  While certain things in my life have changed, at least one thing remains the same:  my dedication to my favorite TV shows.  But having a 3-month-old means I’m always struggling to stay caught up with those shows, which is why this post discusses an episode of The Good Wife that aired in mid-February.  (If you are also a couple of episodes behind, spoiler alert!  And if you don’t actually watch this show and have no clue who any of these characters actually are, well, sorry.)

In this episode, called “Red Team/Blue Team,” Will and Diane attempt to persuade their stubborn client, purveyor of “Thief” energy drink, to settle a wrongful death lawsuit brought by the family of a teenage girl.  (Obviously, you can assume that the manufacturers of any product called “Thief” are only the most right-thinking, trustworthy clients you can find.)  In order to persuade the client of the weaknesses of the case, they conduct a mock trial, with Alicia and Cary serving as plaintiff’s counsel.  Research revealed that a freelancer engaged by the defendant company had acted as a cyber-shill, and had posted glowing reviews about the drink and its ability to help people lose weight on various websites, without disclosing any affiliation to the company.  (If you want to know what one of these posts look like, just check the comment thread on any unmoderated blog or news website for some unsolicited glowing reviews of various black market pharmaceutical websites.  V1agra, L0se W3ight, W0rk fr0M H0me, fR33 iP0ds!)  When Alicia cross-examines the company’s marketing executive about this practice, he protests, “That’s not illegal!”  Alicia agrees, but argues the company is still liable for a different reason (and of course, she’s our heroine, so it is).

But not so fast on that fake ads issue, my friends.  Maybe television writers don’t have time to research the latest FTC before turning in a script, but lawyers certainly do.  And, pursuant to the endorsement guidelines promulgated by the Federal Trade Commission, an online reviewer of a product must reveal any relationship with the seller, especially a financial connection.  And lest you think that, “surely the FTC doesn’t really monitor these things,” wrong again.  In the past two-and-a-half years, the FTC has become increasingly vigilant about the use of cyber-shills and deceptive claims.  This is especially true when there are health implications to the claims, such as in the case of the energy drink featured on The Good Wife.

As an extreme example, the FTC recently succeeded in ceasing the operations of certain online marketers that allegedly used fake news sites to increase sales of their products.  But the FTC also targets companies whose bloggers post reviews without announcing any affiliation, and significant fines can result (not to mention bad publicity and potential tarnishment of the brand).

As always, businesses should make sure they are being guided by the FTC guidelines and experienced legal counsel, not by TV lawyers.  And writers and producers of The Good Wife, if you ever need a legal consultant for your show, feel free to give me a holler.

Employment Law 101, Hollywood Edition, Part II: No Clowning Around

For the most part, employment law may appear to lack the glitz and glamour of the entertainment legal issues we usually cover here at Law Law Land.  But what the field might miss in star-studded premieres and ritzy award shows, it more than makes up for in amazingly entertaining fact patterns involving fascinating forms of employee misbehavior.  And sometimes, just sometimes, the wacky world of California employment law intersects with the wacky world we call Hollywood.  Today’s case-in-point involves an entertainment company, a complaining employee with a colorful nickname for his boss, a termination, and — of course — a lawsuit.

Rewind for a moment to 2008 — a year in which America said goodbye to Heath Ledger, hello to Barack Obama, and, depending on one’s political persuasion “You betcha” or “Dear God why?” to Sarah Palin.  And that year, our plaintiff, Andrew McDonald, was a creative director at a visual post-production studio called RIOT.  Defendant Ascent Media Group subsequently merged RIOT with Method Studios, after which Method Studios’ creative director Alex Frisch was named director of creative visual effects and became McDonald’s boss.  Then things got interesting. Continue reading the full story . . . »

Don Draper: Modern-Day Criminal?

This blogger will be the first to admit that I may have a slight television addiction.  I’m routinely behind in my DVR watching (at least we’ve moved beyond the dark ages of the late 1990s when I had to record my then-favorite shows, Dawson’s Creek and Felicity, on VHS) and I sometimes find myself talking about the relationships between Chuck and Blair, Crosby and Jasmine, or Alicia and Will as though they’re my real-life friends.  (Bonus points for those dear readers who can name all three TV shows I just referenced, without clicking the hyperlinks.)

With that history, it should come as no surprise that I, like so many others, am waiting with bated breath for the return of Mad Men on March 25.  (There’s nothing like a year-and-a-half hiatus to make these trailers — which are really just cleverly edited clips from past shows — super exciting.)  On my drive to work every morning, I see the ads that have generated so much controversy.  So when on a recent drive, I heard this NPR story about the Stolen Valor Act and its intersection with the First Amendment, I confess my thoughts turned to our favorite fictitious, purported war hero, Don Draper.

[Warning:  This blog post reveals plot points from Seasons 1–4 of Mad Men.  Usually the statute of limitations on spoiler alerts would have expired long ago — you’ve had since October 2010 to catch up, people! — but just in case, for those of you who hate great television (and probably puppies and rainbows too) and have therefore managed to ignore the show up until this point, consider yourselves warned.] Continue reading the full story . . . »

Becoming Immune to Reputation Damage: Tips from Kim Kardashian?

This blogger is proud to say that I have never watched any show featuring a member of the Kardashian family (okay, okay, unless you count their step-brother Brody Jenner…you know I could never resist The Hills).  I normally try to pretend to steer clear of anything Kardashian, as I fall into the camp of people who wonder, “why the heck is she famous, anyway?”  (Yes, that’s a rhetorical question — I know it’s because of her video debut.)  But I can’t resist writing an update about the Old Navy commercial we posted about back in March 2011.  (Extra shout-out to fellow blogger Megan Rivetti for anticipating Kim K.’s lawsuit, which wasn’t actually filed until July.)

Kim’s lawsuit claims that Old Navy and its parent company The Gap Inc. violated her right of publicity and misled and confused consumers, and seeks $15­–20 million in damages.  (For more on the right of publicity, see here; for more on consumer confusion, see here; for more on how the actress who starred in the Old Navy commercial is totally re-living Kim Kardashian’s life in other ways, see here.)  But now The Gap’s lawyers are moving in on Kim’s “private life” (and the use of air quotes has never seemed more appropriate).  Among other things, they have sought financial records that show how much stores Bebe and Sears earned by making deals with Kim and why Bebe dropped Kim, and information about “Kim Kardashian’s reputation as a singer and dancer.”   As Eriq Gardner of THR, Esq. points out, one reason The Gap may be seeking information about Kim’s business dealings is to make out an argument — often used in defamation cases — that the plaintiff is “libel-proof” because her reputation is so ruined that no additional damage could be caused.

So let’s take a look at the contours of the so-called “libel-proof” defense. Continue reading the full story . . . »

Creepy Tweeters Have Speech Rights Too

If our dear readers look at my past blog posts, you might think I’m vying for a Bloggie Award* for “Most Posts Related to Social Media.”  As someone who personally spends a fair amount of time keeping up with my friends/news outlets/favorite restaurants through social media, many of the legal disputes that catch my eye examine the intersection of free speech and social media — after all, it’s good to know where the line between lawful and actionable is drawn, even though I don’t think I’m likely to step over it.  (Plus, I think I’m now allowed to bill my workplace Facebook/Twitter time as “researching blog post.”)

Usually, when something goes legally haywire with social media, it’s because Courtney Love defamed someone on Twitter again.  Last month, though, a Maryland federal court has shined a (27-page) light on the criminal law of cyberstalking.  Under a semi-obscure provision of the Violence Against Women Act — codified at 18 U.S.C. § 2261A for you legal eagles out there — federal law makes it a crime when an individual “uses the mail, any interactive computer service, or any facility of interstate or foreign commerce to engage in a course of conduct that causes substantial emotional distress” to someone “with the intent to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate, or cause substantial emotional distress to a person in another State.”

This law may have come as some surprise to defendant William Lawrence Cassidy, who was charged with cyberstalking based on his more than 8,000 posts on blogs and Twitter about Alyce Zeoli, a Buddhist leader (and quite the avid Tweeter herself).  The court’s recitation of facts describes Alyce Zeoli, or “A.Z.” as a “reincarnate llama,” but I’m pretty sure the court really meant lama (as in Tibetan teacher of the Dharma) rather than llama (as in South American camelid).  In any event (actually, probably especially if she is, indeed, an alpaca), Ms. Zeoli — the so-called “Buddha from Brooklyn” — is already quite the controversial figure.

Cassidy’s posts and Tweets ranged from threatening comments (“ya like haiku?  Here’s one for ya: ‘Long, Limb, Sharp Saw, Hard Drop’ ROFLMAO”**) to criticism of Zeoli as a religious figure (“[A.Z.] is a demonic force who tries to destroy Buddhism”) to just vague creepiness (“owl and raven feathers separate….tick tock tick tock tick tock tick tock tick tock”).  Cassidy moved to dismiss the charges against him, and on December 15, the court granted his motion, holding that Cassidy’s speech was protected by the First Amendment and that the restriction didn’t pass scrutiny and dismissed the charges against him.

So what lessons can you take from Cassidy’s case the next time you’re ready to dive into the Twitterverse? Continue reading the full story . . . »

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