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How to Deal with Threats in Negotiation

Posted: April 3rd, 2019

By: Joe Campolo, Esq. email

Published In: The Suffolk Lawyer

Tags:

Have you ever sat across from someone at the negotiation table who eventually stops bargaining and instead starts giving ultimatums?

I’m referring, of course, to the use of intimidation and fear tactics at the bargaining table: someone who threatens to stop negotiating to begin legal action or damage your character and status. How should you respond when the other side begins issuing threats?

The two most common and automatic responses are to offer a direct counterattack or to immediately concede in an effort to maintain what gains or status you already have; however, both tactics won’t work in the long run. A direct counterattack often leads to an escalation in conflict, and immediate concession shows weakness and promotes further intimidation. Instead, threats at the bargaining table should be deflected and the negotiation redirected back toward common interests and goals. Here’s a road map for the next time you find yourself face-to-face with a threat at the negotiation table.

Analyze. The first step is to realize that a threat has been made in the first place. Sometimes threats are overt and obvious, but other times they are subtle. The best way to realize what you’re dealing with is to take a step back from the situation so that you can observe it dispassionately. This might just be psychologically, or you might even want to call a break – or even just take a sip of water – to give yourself time to assess.

Empathize. Being able to empathize and understand your opponent’s perspective is critical to achieving a good result. This is especially difficult after he or she has issued a threat against you. By suppressing your automatic reaction toward either anger or fear, you are better able to empathize with your opponent and begin to question what he or she is after. As you figure that out, you will know how to respond to their threat.

Question. What does your opponent want? By focusing the conversation on what they want, and how you can get it for them through negotiation, you calm tensions, lower the hostility from the issuance of threats, and keep the conversation going. This tactic works best with a straight-shooter; someone who is not actually attempting to threaten but instead informing their opponent of strong alternatives in their arsenal.

Call the bluff. If an opponent’s threat is nothing more than intimidation or is coming from a place of weakness, it might be best to simply call attention to the threat, and therefore neutralize it. Research by Anne L. Lytle, Jeanne M. Brett, and Debra L. Shapiro in The Strategic Use of Interests, Rights, and Power to Resolve Disputes suggests that calling attention to, or labeling, a threat is the best way to get a negotiation back on track. This was the tactic recently used by Nike, when Stormy Daniels’s ex-lawyer Michael Avenatti was arrested on charges of trying to extort $25 million from the multinational footwear giant by threatening to reveal damaging claims about them.

A Strong BATNA (Best Alternative to a Negotiated Agreement). Always have a Plan B. As I have discussed previously, it is important to show up to the negotiation table with a strong alternative to your desired scenario. Preparation is key in any negotiation, especially once a threat has been issued.

Show power. Power both protects you and prompts action. Sometimes an aggressor will respond only to aggression. In such a case, the best solution would be to offer a counterattack to show strength but to then immediately shift the topic back to common interests and goals to avoid trench warfare or a stalemate.

If you focus on these steps and alternative responses, you can answer a threat at the negotiation table in a way that de-escalates the situation and shows strength at the same time.

For further reading, check out the Program on Negotiation’s blog here and look back at my prior posts about power, empathy, preparation, and BATNA.

Southampton Bans Plastic Straws and Styrofoam in Food Establishments

Posted: April 3rd, 2019

In 1988, Suffolk County passed the nation’s first law banning polystyrene “Styrofoam” food packaging due to its threat to the environment, paving the way for other jurisdictions across the country to do the same. Today, at both a Town and County level, Suffolk County is once again leading the way on environmental issues with regard to plastic bags, plastic foam containers, and plastic straws – and these new laws just may help drive up business in the bargain.

Similar to legislation recently passed in Patchogue Village and the Village of East Hampton banning foam food packaging, the Town of Southampton recently passed Town Board Resolution 2019-203 requiring restaurants and food service establishments in the Town to transition from plastic (including straws and stirrers) and Styrofoam products to biodegradable alternatives. This law will go into effect on May 8, 2019 to give businesses time to use up their old stock and make the transition to alternatives which can include cardboard, stainless steel, renewable corn, or bamboo products.

Under the law, restaurants will be permitted to keep a small number of plastic straws on hand for those with physical disabilities who require them, but straws will not be distributed automatically. All other customers who ask for a straw will be given a biodegradable one.

The law applies to all food service establishments and beverage providers, including restaurants, delis, bakeries, bars/taverns, fast food restaurants, take-out, and ice cream stores. Failure to comply can result in a fine up to $1,000, or imprisonment for a term of 15 days or less, or a combination of these.

Similar legislation is also being debated at the county level. Bills introduced in the Suffolk County Legislature in February 2019 aim to reduce plastic litter by eliminating plastic straws and Styrofoam containers, plates, and cups in restaurants throughout the county. This legislation follows the plastic bag fee that went into effect in Suffolk County last year – and which has resulted in an 80 percent decline in the number of single-use plastic bags distributed in the county over the past year, according to estimates.

Food service providers may understandably be concerned about adding yet another to-do item to their never-ending list, but savvy business owners should not view this ban as a burden, but as a potential boon to business. (Indeed, according to 27east.com, the Town’s Sustainability Committee surveyed 80 of the approximately 240 restaurants in the Town, and between 90 and 95 percent agreed that banning straws and Styrofoam containers “was a move in the right direction.”) (Read the full article here.)

By demonstrating an understanding of local environmental and health concerns, Long Island food and beverage service establishments will provide new incentives for existing and potential customers to frequent their stores and restaurants and will be making a change in our world for the better. Many of today’s consumers, particularly millennials, are concerned for the environment and would be more inclined to dine at an environmentally friendly establishment.

Furthermore, Baby Boomers and older generations still remember when restaurants used cardboard takeout boxes and paper straws before the widespread use of plastic, and thus wouldn’t find an adjustment back to this material difficult or inconvenient. In addition, the growing number of food intolerances, food allergies (see our related article here), and alarming cancer rates means that any change in daily life that might decrease the chances of that happening will bring relief and acceptance from Long Island residents, proponents say.

Finally, most Long Islanders agree that environmental cleanup costs are sky-high, and a decrease in plastic litter can make a major difference. By helping to reduce this type of waste, restaurants can promote their forward-thinking attitudes and attract new customers.

Please contact us with any compliance questions you may have.

CMM Negotiates Major Advertising Contract with Long Island MacArthur Airport for Premier Radio Broadcast Client

Posted: March 28th, 2019

Campolo, Middleton & McCormick has successfully negotiated a multi-year contract for premier radio broadcast company JVC Media to upgrade and manage all advertising signage at Long Island MacArthur Airport, a recognized local alternative to JFK, LaGuardia, and Newark Airports.

CMM’s client, JVC Media, is one of Long Island’s best-known local and independently owned radio broadcast and media companies, operating over a dozen stations in New York and Florida. Through the diligent work of CMM attorney Don Rassiger and his team, the deal brings both new opportunity for growth to a Long Island business as well as the modernization of Long Island’s well-loved MacArthur Airport. JVC will replace all existing advertising fixtures and will install state-of-the-art digital networks, landmark LED spectaculars, and vibrant backlit tension fabric banners, enhancing the aesthetic appearance at the airport and providing advertisers with new opportunities to engage travelers.

Operated by the Town of Islip, MacArthur Airport is located next to CMM’s headquarters in Ronkonkoma and serves an estimated 1.29 million commercial passengers a year. With the addition of the airport contract to its portfolio, JVC now manages advertising inventory on Long Island on five FM stations, numerous print publications,  and the 7,000-seat outdoor venue The LI Community Hospital Amphitheater at Bald Hill, reaching over 3.2 million consumers annually. JVC’s ambitious plan to revamp MacArthur Airport’s advertising and signs will allow local businesses to bring their products and services to a wider audience, across a greater range of media, and in exciting new formats, all contributing to the growth of the local economy.

“Two million Long Islanders know all about the offerings at LI MacArthur airport and they all arrive at least an hour before boarding their flight, thanks to the very efficient security lines, making them a great audience for our Long Island media platform,” said John Caracciolo, President and CEO of JVC Media.  “This agreement is a win/win for the Town of Islip, JVC Media, and MacArthur Airport. Don and the entire team at CMM made this public/private agreement process very easy and stress-free, leaving us to do what we do best – sell marketing opportunities to our clients.”

CMM attorneys are adept at assisting businesses in contract negotiation for a variety of projects and expansion plans. Learn more about our Corporate work here.

The 10th Commandment, in Short: Be Good to Your Neighbors

Posted: March 28th, 2019

Much ado has been made recently about Amazon’s Long Island City venture. For better or worse (or we may never know), it seems that Amazon and New York have moved on from each other.

Here at Campolo, Middleton & McCormick, LLP (hereinafter, “CMM”), on the other hand, we have been able to succeed where Amazon has not, and our “HQ3” in Nassau County is open for business. As I write this article/post/op-ed or whatever it is, I stand proud as a member of the CMM Westbury legal team! Stay tuned for my next post, In Defense of Plaintiff’s Lawyers (if “they” let me publish again), to hear more about me and my journey.[1]

CMM is a different kind of law firm and business organization.  As a relatively new part of the team, coming on seven months now, I am settling in, and have had an opportunity to make a few observations: 1) young talent thrives here; 2) if you are not at the table, you are on the menu; 3) Joe Campolo commands a room like nothing you have ever seen; 4) we know why we do what we do (thanks, Simon Sinek); and 5) nobody works harder than we do.

This is not to say that other firms, companies, and businesses fail to match these observations. To the contrary, I have seen several who do just that and are extremely successful. But there is some magical formula here of leadership, a devoted following, openness, self-motivation, and an absolute need for success that draws clients and employees in like a black hole of hard work and happiness, and keeps our legs moving forward like a running back through a crowded line of scrimmage.

So what’s the difference between CMM and Amazon? How are we moving forward in the New York metropolitan area, while Amazon, a bona fide behemoth, was unable to close the deal?  In a phrase – embrace, don’t displace, your neighbors.  CMM’s unwavering devotion to its community is a reflection of its own success. Do good work for your community, and bring your community up with you.

For example, CMM recently participated in the Brentwood Job Shadow Day, hosting high school students interested in legal careers, and announced a $450,000 gift to support scholarships and programs at the Staller Center for the Arts.

CMM’s legal work also embodies its community mission.  Recently, a reputable property developer came to CMM partner Patrick McCormick and me with a solvable but taxing (pun intended) property dispute, causing a road block (pun not intended) in the development of a local property. The client’s problem boiled down to a simple point of tension: a neighbor. The prior owner of the property was involved with a land dispute with its abutting neighbor where each quite literally coveted the other’s property. Their dispute prevented our client from moving forward with its project. CMM was able to step in, and with minimal court involvement, solve the dispute on all sides, allowing our client to move forward with its project.
This case presented one of an infinite number of “simple” problems between local people and businesses where the involved parties are unable to solve on their own. Instead, they call in the problem solvers, the fixers, the litigators.

In this case, as in our business, problems can often be prevented or solved through embracing neighbors, working together, supporting one another, for a mutually beneficial result. Amazon had to learn it the hard way, but many locals felt that Amazon was not supporting or embracing their community needs. Agree or disagree with that analysis, if the community did not feel supported, Amazon could not have succeeded.

The lesson for today, thus, is that most problems can be solved through mutual understanding. Whether it is two entities disputing over adjoining property, or a business expanding its horizons, the needs of all involved must be met for all to succeed. Fortunately for us, CMM works hard with its neighbors to assure mutual benefit, and works hard for its clients to assure an effective end result at an unbeatable value.

[1] Please email me with reinforcement so that I can continue to write for the CMM blog!

CMM Secures Dismissal of Frivolous Ethics Claim Against Our Client

Posted: March 28th, 2019

Campolo, Middleton & McCormick has successfully and quickly disposed of a frivolous complaint filed against our client.

A builder, frustrated by opposition to his development by our client before she was elected to the local municipal council, filed an ethics complaint against her. He claimed that her actions to gather information about the developer’s activities following complaints made to her by the public about those activities abused her authority for her personal benefit. CMM’s Fred Eisenbud filed a response that included an analysis of the municipality’s ethics code and vigorous argument that everything our client did was within the scope of her powers.

Upon consideration of our opposition to the ethics complaint, the Ethics Board found that there was no reasonable basis to believe that our client had violated the ethics code. CMM is pleased to have so efficiently disposed of this frivolous complaint without it becoming public. With this issue now behind her, our client can move forward with her work on the municipal council.

Learn more about our municipal and environmental work.

CMM Aids Local Business to Reverse a Determination by its Errors and Omissions Insurer to Decline Coverage

Posted: March 22nd, 2019

When environmental and insurance coverage issues recently intersected to threaten our client’s efforts to create a group home for veterans, CMM was able to swiftly turn things around.

Our client, a property management company, was preparing a property for rent to Suffolk County for a veterans’ group home. The client hired a company to spread fill to level the property.  After the job was completed, our clients learned that the fill allegedly contained construction and demolition debris, which the New York State Department of Environmental Conservation (DEC) sent notice was unacceptable. According to the DEC, the fill was also placed into an area adjacent to freshwater wetlands without a permit.

Our client submitted a claim with its errors and omissions insurance carrier, but was denied coverage because the consent order entered into with the DEC did not reference the client, only the property owner. Fred Eisenbud, chair of CMM’s Environmental & Land Use practice group, reviewed the policy and contacted the insurance carrier to argue for reversal of their coverage position based on his reading of the insurance contract.  In a victory for our client, less than a month later, the insurance carrier indeed reversed its coverage position and agreed to provide coverage to our client without reservation.

Eisenbud’s efforts have helped the client resume its work as cost efficiently and with as little distress as possible, allowing the renovation of the property to continue to ultimately serve as a home for veterans. CMM is grateful to have played a role in helping this critical work continue.

March 28 – Malafi Chairs "Making An Impact"

Posted: March 22nd, 2019

Event Date: March 28th, 2019

Hear from a panel of dynamic female business leaders who will share their personal experiences and insights about their rise to the top. These women embody the Girl Scouts’ mission to build girls of courage, confidence, and character, who make the world a better place. Their personal journeys will inspire you to support the G.I.R.L.(Go-getter, Innovator, Risk-taker, Leader)™ in your life as she changes the world. You’ll also meet some extraordinary girls and young women who have made the Girl Scout mission their own by doing some amazing things. You won’t want to miss this special event. Senior Partner Christine Malafi, board member for Girl Scouts of Suffolk County, will chair this inspirational event.

Event details:
Thursday, March 28
8:00 a.m – 10:30 a.m.
Radisson Hotel, 110 Vanderbilt Motor Parkway, Hauppauge, New York 11788

Click here to register.

Malafi Serves as Panelist for “Human Resources-Training, Retaining and Managing in the Current Environment”

Posted: March 22nd, 2019

Event Date: April 23rd, 2019

Training is on employers’ minds. Whether it is required, job specific, soft skill or best practices. What should employers think about? It is expensive to hire people. We also know that employees do not leave companies, they leave managers. What do employers need to think about with respect to managing employees? Learn about the top 3 retention strategies.

On April 23, Senior Partner Christine Malafi will share her years of experience in labor law with attendees for this informative event. Join Christine and other experienced panelists for this event hosted by the Long Island chapter of Institute of Management Accountants (IMA).

Event details:
Tuesday, April 23
8:00 a.m.
68 South Service Road, Melville, NY 11747
Tickets are $25. Click here to register.

Copyright: “Registration” vs. “Application” Finally Solved

Posted: March 19th, 2019

Published In: The Suffolk Lawyer

Tags: ,

A copyright gives the creator of a work an exclusive legal right to reproduce, and authorize others to reproduce, the protected work.  Before a copyright owner can enforce this right with a civil lawsuit, he must register this work with the U.S. Copyright Office.[1] Surprisingly, however, ownership of a copyright exists apart from registration.[2]  The creator of a work becomes the owner of the copyright of the work upon its creation.  If this sounds inconsistent, then you’re right.  Although someone may have the ownership rights to copyrightable work, he or she may not enforce this right until the work is “registered.”  U.S. Copyright law establishes the prerequisite of “registration” prior to bringing an action for copyright.  The problem over the last couple of years was that no one was entirely sure what “registration” meant.

For decades, copyright litigants were treated differently across the nation depending on which jurisdiction the litigant sued in.  Some courts construed the “registration” requirement to be satisfied after the Copyright Office acted upon a copyright owner’s application, otherwise known as the “registration approach.”  Other courts deemed “registration” to be satisfied after the copyright owner merely submitted an application, materials, and fees to the copyright office, otherwise known as the “application approach.”

The issue has finally been resolved in Fourth Estate Public Benefit Corporation v. Wall-Street.com, LLC.[3]  The Supreme Court deemed the “registration approach” to be the correct approach based the plain language of the statute.  Fourth Estate is a news organization that licensed its work to Wall-Street.  Fourth Estate sued Wall-Street after Wall-Street failed to remove the Fourth Estate’s works after canceling the parties’ license agreement.  Fourth Estate had filed applications to register the works with the Copyright Office; however, the Copyright Office had not acted upon the applications.  The trial court dismissed the complaint stating that Fourth Estate had not satisfied the registration requirement and the appellate court affirmed the ruling.  Fourth Estate appealed again to the Supreme Court.

The thorough opinion written by Justice Ginsburg on behalf of the unanimous Court decides that the correct way to construe the law is by requiring a copyright owner’s application to be acted upon by the Copyright Office before bringing a civil action for infringement.  The Court comes to this conclusion by analyzing the plain language of each sentence within the statute and finally resolving the split in the lower courts.  The “registration approach” will be used in every copyright infringement suit from here on out, putting an end to the inconsistency.

The takeaway: copyright owners should begin registering works that are vulnerable to infringement sooner rather than later.  Although plaintiffs are entitled to damages, including those that occur prior to registration,[4] some of the harm suffered from infringement can be irreparable.  Owners should make sure they are able to bring suit as soon as they are aware of infringement to best protect their works.

[1] 17 U.S.C. § 411(a)
[2] 17 U.S.C. § 408(a)
[3] No. 17-571, 2019 WL 1005829 (Sup. Ct. Mar. 4, 2019).
[4] 17 U.S.C. § 504

The information contained in this article is provided for informational purposes only and is not and should not be construed as legal advice on any subject matter. The firm provides legal advice and other services only to persons or entities with which it has established an attorney-client relationship.