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The U.S. Supreme Court Delivers a Death Knell to the Alien Tort Statute

Posted: June 13th, 2018

On April 24, 2018, Justice Kennedy, writing the plurality opinion in Jesner et al. v. Arab Bank, Plc., 584 U.S. __ (2018), placed what might be the final nail in the coffin of the Alien Tort Statute (ATS). In Jesner, the Court affirmed the U.S. Court of Appeals for the Second Circuit’s dismissal, which held that aliens cannot sue foreign corporations pursuant to the ATS. While Jesner certainly is not the highest-profile decision of the October Term, it has a significant impact on the enforcement of international human rights.

The ATS is a little-known U.S. statute enacted as part of the Judiciary Act of 1789. The ATS provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350. As was concluded by the Supreme Court in 2004, Congress passed the ATS to provide jurisdiction for violations of the law of nations (i.e. international law) that existed in the late 18^th century and listed by Blackstone in his Commentaries on the Laws of England, namely offenses against ambassadors, violations of safe-conducts, and piracy. However, international law evolves and new rights and duties become codified in international treaties. Arguably, as time went on, the ATS granted U.S. courts jurisdiction to an ever-growing list of “violations of the law of nations or a treaty of the United States.”

As international law grew, the ATS sat dormant until 1980 when the Second Circuit decided Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), and international lawyers began to laud the ATS as a legal mechanism to enforce international human rights through tort claims in U.S. courts. Filartiga involved a teenager from Paraguay who was kidnapped and tortured to death by Pena-Irala, a high-ranking police officer, in retaliation for the family’s political activities. The family later moved to the United States and applied for political asylum. Pena-Irala would later move to the United States and be arrested for visa violations. While in custody, the Filartiga family brought a civil action for wrongful death, arguing that Pena-Irala’s actions violated the U.N. Charter, the Universal Declaration of Human Rights, and other customary international laws. The Second Circuit upheld a $10 million damages award and the holding was interpreted as granting U.S. courts jurisdiction to decide tort cases for alleged violations of international law that occurred overseas between foreign parties.

In 1995, the Second Circuit issued a ruling against Bosnian Serb politician Radovan Karadzic for his role in the human rights violations in the former Yugoslavia, which for the first time extended the ATS beyond government officials. The Karadzic decision in turn opened the door for ATS actions against corporations, led by the 1996 case against the oil company UNOCAL for complicity in human rights abuses by the Myanmar government. Seen as a bell curve, the ATS’ reach as a tool for the enforcement of human rights peaked in the late 1990s and early 2000s and well over 100 ATS actions have been filed against corporations since the Karadzic decision.

Then, in 2004, a Supreme Court more skeptical of the role of customary international law in U.S. courts decided Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), and began to chip away at the breadth and power of the ATS. Jesner is the Supreme Court’s most significant ATS decision since Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013), which held that the ATS does not presumptively apply extraterritorially, and consistent with a Court that is reluctant to extend judicially created private rights of action.

The Jesner petitioners were either injured or the family members of those killed by terrorist acts abroad. Petitioners alleged that the terrorist acts were in part caused or facilitated by Arab Bank, PLC by allowing the Bank to transfer funds to terrorist organizations in the Middle East, including Hamas. The attacks at issue occurred between 1995 and 2005 and allegedly involved transactions in U.S. dollars that had moved through the Bank’s New York office. Petitioners had lost at the district and circuit courts and filed certiorari on the grounds that the Court’s decision in Kiobel left open the question of whether the ATS allows for corporate liability. Justice Kennedy posed the question before the Court as “whether the Judiciary has the authority, in an ATS action, to [] determine[]” if a corporation has liability if its “human agents use the corporation to commit crimes in violation of international laws that protect human rights.”

In answering the question in the negative, Justice Kennedy cited, among other justifications, judicial efficiency and the negative impact to U.S.-Jordanian relations caused by the lawsuit. The essence of Kennedy’s opinion, however, is that such suits should not be allowed without explicit congressional authorization. Continuing to apply the reasoning set forth in Sosa, Justice Kennedy was unwilling to state that the allegations against Arab Bank were violations of international norms with “definite content and acceptance among civilized nations” or that the Court “has authority and discretion in an ATS suit to impose liability on a corporation without a specific direction from Congress to do so.”

Jesner produced a fractured series of concurring and dissenting opinions, treatment of which is beyond the scope of this brief article. However, the decision may represent the final bottoming out of the ATS bell curve.

Malafi shares insights for employers in Newsday article “In the #MeToo Era, Firms Must Be Ready to Handle Reports of Sexual Harassment”

Posted: June 12th, 2018

By Jamie Herzlich

With more employees coming forward, there’s been an uptick in companies requesting guidance on how to handle potential claims, experts say.

The #MeToo movement has put sexual harassment in the forefront and made it easier for victims to speak out.

That makes it all the more important for employers to be prepared to handle harassment complaints from employees, say experts.

“You don’t want to wait until someone comes forward and then scramble,” says Deb Muller, CEO of Florham Park, New Jersey-based HR Acuity. “You should be sitting down with your leadership team and saying ‘How do we manage this?’ ”

Anecdotally, she says, she’s been hearing from employers about more sexual harassment incidents being reported internally in the workplace.

“This doesn’t necessarily mean more incidents are occurring, it just means more individuals are comfortable stepping forward,” says Muller.

Christine Malafi, a partner at Campolo, Middleton & McCormick in Ronkonkoma, has seen an uptick in the number of employers requesting guidance on handling potential claims of sexual harassment in the workplace and also looking to update their policies or do refresher training.

“The best defense is a good offense,” says Malafi.

While not all reports turn out to require disciplinary action or result in formal charges being filed, each one must be taken seriously.

“A lot of times it’s a misunderstanding of a situation that can be solved by having a conversation with a member of the company’s management team or human resources team,” says Jeff Agranoff, a principal at Jericho-based Grassi & Co., a CPA and business advisory firm.

“The most important thing you can do is listen and take notes,” says Muller, adding that you can even have an intake questionnaire or template ready.

Have a process and point person to whom employees can go to report complaints.

If someone reports an incident, ask the employee key questions: What happened? Who was involved? What was the impact of the incident (i.e., did you lose your job?).

You want the employee to feel comfortable coming forward; otherwise the person could end up taking the complaint elsewhere (i.e., to an attorney), Muller says.

“It’s a dangerous situation for a company to not follow a process and investigate it properly,” says Agranoff, noting this typically includes interviewing all people involved.

While conducting the investigation, it’s best to leave the employee in his or her current position unless a specific change is requested, he says.

“You have to make a reasonable accommodation to put the person in a more comfortable environment,” he says, noting if the the person is comfortable with the current situation “don’t change things just to change them.”

You don’t want someone negatively impacted because they made the complaint. In fact, your harassment/discrimination prevention policy should include a statement prohibiting retaliation.

In the same respect, employers should not be accusatory toward the person the complaint is lodged against while the investigation is ongoing, says Malafi.

Be as discreet as possible when investigating, she says. Perhaps even avoid using names when initially interviewing witnesses. For example, in a case where someone showed inappropriate pictures in the lunchroom, when interviewing employees you may just say there was a complaint that involved someone showing inappropriate pictures and see how they respond, says Malafi.

If an investigation results in valid claims on the part of the accuser, it’s the obligation of the employer to take remedial action to do its best to ensure the behavior doesn’t continue, says Pfadenhauer, author of “Workplace Investigations: Discrimination and Harassment” (Datamotion Publishing, $29).

Depending on the circumstances, this doesn’t always mean termination; it could mean restating your policy and making sure everyone’s clear on what’s appropriate and inappropriate conduct in the workplace, she says.

And then, says Pfadenhauer, “Management should periodically follow up to make sure the inappropriate behavior does not continue.”

Read it on Newsday.

Taking the Leap into Global Marketing

Posted: June 12th, 2018

Tags: corporate, intellectual property, international

By Michael Smith, guest blogger
President & CEO, Linx Communications

Global markets are now the norm for many companies. But how does a company make the decision to expand into a new market? While foreign markets are potentially lucrative, international marketing is significantly more complex than domestic marketing. This includes legal and financial differences—every country has its own separate set of laws that govern business that must be taken into account—as well as cultural differences that must be addressed within marketing.

In 2018, global B2C sales will reach $28 trillion and global B2B sales are expected to hit over $9 trillion. While most of the business is generated from domestic companies or true global brands, there is a huge opportunity for mid-size companies to look at foreign markets for growth, especially when their brands match well to those markets.

The advent of ecommerce for both B2B and B2C brands makes marketing globally easier, but you still need to deliver and support your product or services within each country you sell.

So how do you build the right marketing strategy and plan for expansion?

Research. Work with local experts to determine the size of the market for your product/services in each country the company will expand. Learn the laws governing business and marketing in those countries. You will want to look at key competitive factors in that country such as the top market leaders and how they control distribution or access into your desired markets.
Build the infrastructure. Leading with a robust infrastructure early on to streamline the process of international marketing is key. This includes activities around the products such as registering trademarks, reserving international domain names for local language microsites, and placement of your products (such as distribution locations and/or partners).
Adapt the current marketing strategy. Creating an international marketing strategy usually requires the assistance of local talent in the new market, but much of your current marketing strategy and tactics can be adapted from the company’s domestic strategy.
Localize the product and marketing materials. This includes translating and tailoring messages to appeal to new demographics.
Reevaluate and adapt. Just as domestic markets are constantly changing, so are international markets. Continue to conduct market research and adapt marketing strategies.

Research

When it comes to creating a global marketing strategy, there is no such thing as too much research. It really is more than just a matter of language. Each country has its own demographics, cultures, competitors, and regulations. Companies need to tailor their marketing efforts to each country.

Here are a few questions to keep in mind:

How big is the market in the target country for the product or service being offered?
Are there direct competitors in the target country?
What have those competitors done in the same arena? How did they succeed? What obstacles did they face? What would this company do differently?
How is the target demographic in the new country different from the target demographic at home?
Which social media tools are the most popular in the target country?
What search engines are most effective in the target country?
What are the most effective marketing channels in the target country? In some countries, social media may be the most effective marketing environment, while traditional programs may work better in other countries.
How expensive is advertising in the new country?
Are there cultural differences between the two countries that should be taken into account when creating marketing materials?
For companies in the retail or consumer goods verticals, how will orders be fulfilled? Are there potential problems with distribution? How will packaging be affected?
What type of customer service is standard in the target country?
What are the local laws governing business practices?
How drastically does the country’s currency fluctuate over time?

These are only some of the questions to ask while building an international marketing plan for a specific region, but it’s a start. This sort of research should be done each time the company expands into a new region.

Build the infrastructure

This is where the brunt of the work in breaking into a new country takes place. Creating the infrastructure in each country early in the process will pay off exponentially down the road.

It’s wise to have a local representative in the country to help navigate unexpected obstacles and clearly explain local business practices and terminology. Executives should be sure they fully understand the laws and legal terminology of any contracts within the country before signing them and making them legally binding.

As a best practice, companies should secure top level domains early on for their websites, such as .co, .cn, .au, .us, and so on, to prevent squatters from reserving them and then charging a premium to turn the name over. Businesses should also register trademarks immediately once the decision is made.

Real estate laws often work differently in other countries as well, so if the company intends to create a physical presence for offices, distribution, or brick-and-mortar locations, executives should make sure that they are clear on the local laws.

Adapt the current marketing strategy

Again, while it is important to tailor marketing content to specific regions, that does not mean that all previous marketing work is useless. Rather than throwing everything out and starting from scratch, look at the current marketing plan and see what aspects will work in the new country.

There is a popular story about the General Motors expansion into the Latin American market. According to the story, when Chevrolet introduced their popular Nova model into countries that primarily spoke Spanish, the vehicle sold very poorly. Supposedly, this was because in Spanish, “no va” literally translates to “no go” or “it doesn’t go.” And who would want to buy a car whose name proudly declared that it wouldn’t run?

While this example may be fun to laugh at, it raises a valid point. When doing business in other countries, it is important to take the local language and culture into account in every aspect of marketing. Often there are local opportunities to tailor your brand to the local culture or even local tastes.

Even companies that seem to have standardized offerings across all markets have adapted their products to match the target demographic. For example, in the Philippines, hamburger giant McDonald’s (locally called “McDo”) offers “McSpaghetti.” The idea of ordering a plate of spaghetti at McDonald’s seems completely alien to anyone familiar with the chain restaurant in the United States, but in the Philippines, it is a regular part of their menu. Other local offerings include macarons in France and the flatbread McArabia in the Middle East.

To boost SEO, companies should also make sure that search engines are able to see which languages their websites are able to handle by using hashtags or language meta tags. These varies greatly depending on which search engines are being used around the globe.

Reevaluate and adapt

Once the core brand and product strategy are completed, you still need to look at local media, influencers, and activities to help sell your products. Today these local market preferences can change rapidly and require agile strategies to test new ideas and meet the current trends in each market where the company has a presence. As the company’s presence becomes more established, there is a good chance that marketing plans in each country will diverge, becoming more specialized and better able to target local business.

Michael Smith is the President and CEO of Linx Communications, a leading strategic marketing company, and has helped expedite market access for countless companies around the world. Contact him at Michael.Smith@linx.com.

Note: this article does not necessarily reflect the views of CMM and does not constitute legal advice.

CMM Spotlight: Lorraine Gregory Communications

Posted: June 6th, 2018

Walking through the bright, colorful hallways at Lorraine Gregory Communications’ shiny new headquarters, over the hum of state-of-the-art printers and the voices of employees energetically collaborating about social media campaigns, it’s hard to imagine that this lively, innovative company started out in the early ‘90s as a direct mail business staffed by three people stuffing envelopes.

LGC, today a powerhouse marketing and communications firm, recently expanded their footprint with a move to the Heartland Business Center in Edgewood. Founder and CEO Greg Demetriou, a client and friend of CMM, recently invited CMM Managing Partner and HIA-LI Board Chairman Joe Campolo for a tour of LGC’s beautiful 25,000 square-foot facility. The “front of the house” is home to marketing operations, while the “back of the house” features a fully-equipped professional studio and an enormous yet meticulously organized printing and mailing center.

An award-winning retired NYPD detective, Demetriou launched his current career almost by accident. His brother, then a corporate VP at PaineWebber, opened a new business to process proxy mail for the brokerage and asked Demetriou to organize the operation. Starting with an empty warehouse, the company grew to 132 employees and processed 50 million pieces of mail by the following year. Once that business closed, Demetriou and his wife, Lorraine, pooled their money to purchase a storefront direct mail company he saw advertised in the newspaper. Eventually, through years of dedication and hard work, the former detective found himself at the helm of a direct mail consultancy; a full-service letter shop, fulfillment, and mailing provider; a communications firm; a full color offset and digital commercial printer and bindery; an online development and marketing solutions provider; and a brick-and-mortar and online purveyor of printed envelopes servicing consumers, municipalities, and institutions.

The company was completely rebranded in 2015, effectively merging these distinct divisions into the LGC corporate identity. Today, LGC is the premier provider of marketing and communications expertise in the region, helping clients market themselves on Long Island and around the globe. Demetriou and his team of 35 employees focus on integrated marketing – servicing all marketing needs for clients including advertising, branding, direct mail, media strategy, printing, PR, social media, and web design – all under one roof. LGC is a one-stop-shop for clients with no need to outsource.

“You can’t leave a base untouched,” Demetriou explains. “Marketing is about consistency, and being where your audience is when they’re there.” While a social media presence is absolutely critical today, Demetriou says, each time you add a medium, your ROI goes up. “We still work with clients on TV and print ads – everything is just more targeted. It’s all about the messaging.” LGC works with clients to determine the best platforms and strategy for them to showcase their unique focus. For example, LGC recently helped a client who was looking to hire more workers craft social media posts highlighting the vibrant company culture, employees, and their personal stories to generate buzz and prompt resume submissions.

A longtime supporter of the HIA-LI, well known in the Long Island business community, and now getting to know his new neighbors in the Heartland Business Center, Demetriou enjoys working with clients who understand the value of investing in marketing. As chief rainmaker and strategy officer of the company, he’s also getting to know Long Island CEOs on a deeper level through his exclusive “Ask a CEO” interview series featuring leaders including Michael Dowling, CEO of Northwell Health. But as LGC’s client base grows in size and sophistication, the personal touch remains a hallmark: Demetriou recently drove to a New Jersey trade show to support (and surprise) a client who was nervous about the big event.

Demetriou points to his staff as the reason for LGC’s incredible growth. Company culture is vital at LGC; as Demetriou explains, with today’s relatively low unemployment, companies need to offer something different to attract top talent. “We hire for culture. Skills can be trained,” he says. As a result, LGC has been awarded several honors from not only HIA-LI, but also Long Island Business News, Future 50, and Smart CEO.

Prospective clients wondering if LGC is the right fit for them need only glance around at important business events and in their networks. “I’m everywhere!” Demetriou jokes. LGC will help companies looking for mature, sophisticated marketing be everywhere, too. Learn more at https://lorrainegregory.com/.

He asked a CEO: Greg Demetriou, founder and CEO of Lorraine Gregory Communications (LGC), recently welcomed Joe Campolo to the company’s beautiful new headquarters in the Heartland Business Center in Edgewood. Next photo: Expect the unexpected at LGC, where creating engaging experiences is part of the company’s DNA.

Entrepreneurship, professionalism, and good corporate citizenship are hallmarks of the LGC experience. Next photo: Social media is just one of the many services LGC offers. Colorful signs and walls help get the team’s creative juices flowing.

A former detective with the New York Police Department, LGC President and CEO Greg Demetriou proudly displays his NYPD Medal of Honor. Next photo: Demetriou, along with VP of Business Development Heather Edwards, recently gave Joe Campolo a tour of their new headquarters, which features an on-site studio. As an integrated marketing agency, LGC offers clients all the services they might need – from branding to social media to direct mail to PR – all under one (large) roof.

At LGC’s new space in the Heartland Business Center, the “front of the house” is home to marketing operations while the “back of the house” features studio, printing, and mail space. Next photo: Think today’s marketing is all digital? LGC still processes between 80 and 100 million pieces of mail a year, generating $20-30 million in postage.

They don’t make them like that anymore: nestled in with the latest technology, this Envelope Master still puts in a hard day’s work. Next photo: This “envelope assembly line” makes the postage machine in your office seem quaint.

Whoever said “print is dead” hasn’t worked with LGC. Next photo: An old-fashioned looking machine churns out the cutting-edge work of LGC.

Members of the LGC team welcomed Campolo to the office.

New York State Employers Required to Implement Sexual Harassment Policies and Conduct Sexual Harassment Training

Posted: June 5th, 2018

By Christine Malafi

Sexual harassment in the workplace is by no means a new issue, but in the wake of the #MeToo movement, New York lawmakers have taken action to address it. While well-prepared employers have had sexual harassment policies and training in place for some time, under new legislation, passed as part of the 2019 New York State Budget and signed by Governor Cuomo in April, employers now have no choice and must have policies and training. With portions of the new laws already in effect, and the remaining law going into effect in the very near future, it’s critical that employers approach compliance in a proactive way.

Below is a guide to important policy changes and their effective dates. This list is not exhaustive, and we encourage you to contact us to review your particular situation. Additionally, employers with a New York City presence must comply with several additional requirements and deadlines not addressed in this article; please contact us to review these requirements in detail.

Immediately

The New York State Human Rights Law now protects all individuals against sexual harassment in the workplace, regardless of their employee status or role. For example, employers may be responsible for sexual harassment endured by their independent contractors and consultants.

July 11, 2018

As of this date, agreements requiring sexual harassment claims to be submitted to mandatory arbitration are void under New York law.
Courts are not permitted to approve confidential settlement agreements for sexual harassment claims unless the complainant: (a) is the one who requests confidentiality, (b) was given 21 days to consider the confidentiality provision, and (c) was given seven days to revoke his or her acceptance of the confidentiality provision.

October 9, 2018

By this date, all employers must prepare and distribute a written sexual harassment policy (either the model sexual harassment prevention policy prepared by the New York State Department of Labor and the New York State Division of Human Rights, or their own policy compliant with all standards of the model policy). The adopted policy must include a statement prohibiting sexual harassment or retaliation for complaints, examples of prohibited conduct, information about the federal and state laws regarding sexual harassment, a standard complaint form, a procedure for timely investigating complaints, a statement of rights, and notice that sexual harassment is considered to be employee misconduct, among other requirements.
Sexual harassment training for all employees must occur annually. Training must be “interactive” and as with the written policy, employers have a choice of presenting the state-approved version or their own program compliant with all the requirements, which include a definition of sexual harassment, examples of prohibited conduct, and information about the federal and state laws addressing sexual harassment as well as employees’ right of redress and methods/forums to handle complaints.

We encourage our clients to be proactive in addressing these changes by immediately evaluating their existing sexual harassment policies and training (if any) and contacting us for guidance in timely complying with these important new requirements. We are here to help!

CMM’s Real Estate Group Successfully Completes Refinance of Commercial Building in Hauppauge Industrial Park

Posted: June 5th, 2018

Campolo, Middleton & McCormick’s real estate team has successfully completed a refinance of a commercial building in the Hauppauge Industrial Park – the second largest industrial park in the nation after Silicon Valley.

Our client’s building is home to over a dozen commercial tenants in various industries from professional services to manufacturing. The CMM team negotiated with multiple brokers to find the best lender and terms for our client. Once the lender and terms of the deal were in place, CMM worked with the client to meet the lender’s requirements for the multimillion-dollar loan. CMM seamlessly worked with the client to amend its corporate documents as needed and bring the deal smoothly to closure.

Learn more about our real estate practice.

June 20 – Campolo Presents “The Art of Negotiation” at Suffolk County Estate Planning Council

Posted: June 4th, 2018

Event Date: June 20th, 2018

Join Joe Campolo, Managing Partner of Campolo, Middleton & McCormick, for a presentation on “The Art of Negotiation” at the Suffolk County Estate Planning Council’s June meeting.

Wednesday, June 20, 2018

Cold Spring Harbor Laboratory – Wendt Building, 1 Bungtown Road, Cold Spring Harbor, NY 11724

Agenda:
8:00 a.m. – Networking and registration
8:30 a.m. – Remarks by Cold Spring Harbor Lab
9:00 a.m. – Negotiation presentation begins
10:00 a.m. – Program concludes

For more information or to register, visit http://www.epcscny.org/ or contact admin@epcscny.org

No fee for members / guest fee $45

McCormick Argues Motion in Court of Claims, Exclusive Forum for Civil Litigation Seeking Damages Against New York State

Posted: May 30th, 2018

CMM partner Patrick McCormick recently argued a motion at the New York State Supreme Court in Albany in the Court of Claims – the exclusive forum for civil litigation seeking damages against the State of New York. As a veteran appellate and trial lawyer, McCormick has made his case in no fewer than 10 counties, three appellate division departments, two federal court districts, and the New York State Court of Appeals (the state’s highest court).

Learn more about our Appeals and Litigation practice groups.

CMM Represents Weiss Instruments in Agreement with Global Technology Company Emerson Electric

Posted: May 30th, 2018

Emerson Electric (NYSE: EMR) has entered into an agreement with Weiss Instruments to directly serve customers of Emerson’s Dixell products. Joe Campolo and Vincent Costa of Campolo, Middleton & McCormick, LLP represented Weiss Instruments in the transaction, the terms of which have not been disclosed.

Since 1996, Weiss Instruments has been the exclusive authorized third-party distributor in the United States for Dixell controls, the leading microprocessor-based electronic regulation, temperature, pressure and humidity controls for commercial refrigeration and air conditioning. Emerson’s assimilation of the Dixell distribution business took effect in March.

Holtsville-based Weiss Instruments has manufactured thermometers and pressure gauges for over 100 years, and offers a complete line of products for the Bid & Spec, Wholesale Distribution, Refrigeration, and Food Service Industries. This core business was not included in the agreement and Weiss Instruments will continue as an independent company. Learn more at http://www.weissinstruments.com/.

Headquartered in St. Louis, Missouri, Emerson Electric is a global technology and engineering company providing innovative solutions for customers in industrial, commercial, and residential markets. Learn more at Climate.Emerson.com.

For additional information on this transaction, please visit http://www.emerson.com/en-us/news/commercial-residential/emerson-finalizes-agreement-with-weiss-instruments.