Bernstein Shur Monthly – February 2019

Bernstein Shur Announces Five New Shareholders

Portland and Augusta, ME and Manchester, NH (Jan 09, 2019) – Bernstein Shur, a leading New England law firm, announced the selection of Helen Coburn, Meredith Eilers, Christina Ferrari, Talesha Saint-Marc, and Jack Woodcock as shareholders.

Helen Sterling Coburn is a member of the Business Law Practice Group and Co-chair of the Group’s Private Capital team, where she advises entrepreneurial companies and investors across multiple industries on corporate governance, corporate financing, and general business matters. Her practice focuses primarily on representation in angel and venture capital investment, as well as other financings involving compliance with federal and state securities laws. Coburn is a member of the Board of Directors and Co-Chairs the Program Committee of Startup ME, a non-profit committed to elevating ME’s start-up ecosystem. She earned her J.D. from Boston College Law School and resides in Cumberland, ME.

Meredith Eilers is a member of the Litigation and Dispute Resolution and Construction Law Practice Groups. Her practice focuses on helping clients resolve a wide variety of legal matters, including disputes involving the Uniform Commercial Code, products liability, and construction contracts. Eilers also advises a range of clients on both residential and commercial construction contract drafting. She co-founded Bernstein Shur’s annual Women in Construction event, a networking and panel event dedicated to issues women face in the construction and project development industries. Eilers earned her J.D. from Vermont Law School and resides in Bowdoinham, ME.

Christina Ferrari is a member of the Litigation and Dispute Resolution, Business, and Healthcare Practice Groups. Before entering law, Christina was a dedicated researcher in the fields of neurosurgery and neuropharmacology, and her work has been published in the Journal of Neuroscience. She now puts her industry-specific, technical knowledge to work as an advisor and outside general counsel to her biotechnology, medical device, and pharmaceutical clients, as they navigate the modern-day health care system’s legal and regulatory challenges. As a skilled litigator, Ferrari advocates for her clients and assists them in resolving complex disputes in the areas of products liability, toxic torts, healthcare, and professional licensing. Ferrari is President of the New Hampshire Women’s Bar Association, a member of the Manchester Business Council, appointed by Mayor Craig and a member of the New Hampshire Tech Alliance’s BioMed TechCommittee and Government Affairs Committee. She earned her J.D. from the University of New Hampshire School of Law, where she was a Daniel Webster Scholar and sworn into the New Hampshire Bar prior to graduation, and resides in Amherst, New Hampshire.

Talesha Saint-Marc is a member of the Labor and Employment Practice Group and provides advice and counsel to employers regarding all aspects of employment law, including FLSA, FMLA and ADA compliance, and Title VII and state human rights claims. In addition to representing employers before both various government agencies and in court, she represents employers in collective bargaining, contract administration, grievance and arbitration proceedings, and before the National Labor Relations Board. Saint-Marc is the Clerk of the New Hampshire Bar Association’s Labor and Employment Section and serves as the Secretary of the Board of Trustees for Rivier University. She earned her J.D. from Northeastern University School of Law and resides in Nashua, New Hampshire.

Jack Woodcock is a member of the Litigation and Dispute Resolution Practice Group and handles complex civil litigation across a wide variety of subject areas. His prior experience includes serving as a trial attorney in the Civil Division of the U.S. Department of Justice, where he defended the United States in large civil suits in federal courts across the country, including two bellwether suits brought by residents of Greater New Orleans for flood damages incurred in Hurricane Katrina. Woodcock earned his J.D. from the University of Maine School of Law and resides in Cumberland, ME.

Talesha Saint-Marc Listed in 40 Under 40 by New Hampshire Union Leader

Talesha Saint-Marc, a shareholder in the Manchester, NH office was recently named to the New Hampshire Union Leader’s 40 Under 40 list. The annual list aims to showcase the brightest achievers in the community and highlight their careers.

ME Revises Sexual Harassment Training Requirements

A new law requires ME employers to use a training checklist compiled by the ME Department of Labor and increases penalties for violations. Is your sexual harassment training program up to snuff?

By: Tara A. Walker

As the #MeToo movement marks its first year, more than 260 powerful men have lost their jobs after public allegations of sexual harassment. Now, many employers are re-examining their legal obligations to provide sexual harassment training, and asking this critical question: “Are we doing enough to prevent this kind of abuse in the workplace?”

One of the key ways lawmakers have sought to increase accountability for sexual harassment is by creating robust training requirements, and ME is no exception. In 2018, ME enacted a new law—which hasn’t garnered much attention—requiring employers to adhere to specific training requirements and upping penalties.

The new law, P.L. chapter 162, shifts enforcement of sexual harassment training requirements squarely within the Department of Labor. The law requires employers to adhere to a “compliance checklist” created by the Department of Labor, and increases penalties for violations of education and training requirements, specifically:

• $1,000 for the first violation
• Posting requirements ranging from $25 to $1,000 per day, with multiple violations increasing those costs

The “checklist” created by the Department is not as much a “training checklist,” as it is a compilation of definitions and resources. Employers should be mindful of this resource and monitor further training requirements adopted by the DOL.

These changes provide a good opportunity for employers to review their existing training programs. Sexual harassment training in 2019 is necessarily different than its forerunners. Showing stock video footage or clicking through a PowerPoint while attendees look at their phones is not sufficient and sets the wrong tone. We have seen many recent examples in the news of sexual harassment training missing the mark, from a slide that simply includes “harassment = bad”, to trainers actually dismissing inappropriate behavior and discouraging its reporting.

Employees are paying more attention to these conversations and using the training received to inform their judgment about workplace culture. This new law is a good opportunity for employers to carefully look at their current training programs to ensure they are robust and appropriate, and include the following at a minimum:

• Compliance with all legal requirements, including the required content and separate training for supervisors and any changes that may come from the Department of Labor
• Honest and open conversations about workplace culture with a focus on actual behavior
• An appropriate conversational tone, which can be as important as the message. The training needs to reflect the seriousness of how far-reaching these issues can be, for both employee and employer
• A conscious effort to empower the bystander. Good workplace harassment training encourages employees to speak out for their colleagues, and doesn’t focus only on the harasser and victim

Please keep your eyes peeled for further developments, which we will alert you to as a continuous resource for our clients. If you have any additional questions, feel free to contact us at any time!

Advertising Mistakes that Put Your Organization at Risk

By: Eric Langland

Marketing campaigns continue to be a significant source of legal risk for organizations. Prior to advertising your products or services, make sure your advertisements comply with guidance from the Federal Trade Commission (FTC), state agencies, and other regulations specific to your organization. Two common sources of litigation resulting from marketing campaigns are the Telephone Consumer Protection Act (TCPA) and the FTC regulations regarding unfair and deceptive trade practices.

Text and Telemarketing Campaigns

Text message and telephone marketing campaigns put businesses directly into the hands of consumers. Text message and telephone marketing campaigns are also a hotbed of litigation. Recently, two different courts ordered Dish Network to pay a total of nearly $341 million for violating the TCPA.  In 2018, alarm.com settled a similar lawsuit for $28 million, and solar panel company NRG Residential Solar Solutions settled its TCPA class action lawsuit for $7 million.

The TCPA regulates text message marketing and certain telemarketing calls and provides consumers with the right to sue businesses that send such marketing messages without receiving prior express written consent.

Before conducting an SMS or telemarketing campaign, businesses should confirm that they received prior express written consent from the consumer before sending texts or making phone calls. Prior express written consent must be accompanied by a clear and conspicuous disclosure that provides notice of:

(a) what they are signing up for; (b) the frequency with which messages will be sent; (c) the rates that may apply to messages and data; (d) the use of an automated telephone dialing system to send messages to a specific number; and (e) the requirement that customers need not consent to receiving messages as a condition of purchase.

In order to consent, customers must take an affirmative action, or “opt-in,” to receiving texts or phone calls. Companies should keep a record of customer consent for a period of five years after receiving the consent.

Deceptive marketing tactics

Advertisements that fail to disclose material information, or make claims that cannot be substantiated, or include a paid endorsement by a celebrity or other public figure without disclosing the commercial nature of the relationship, continue to land companies in court. Here are some recent examples of companies that failed to follow FTC guidelines on unfair or deceptive trade practices.

Failure to disclose material information

• Insurance giant American National Insurance Co. settled a class action lawsuit for $9 million after it allegedly concealed and misrepresented fees, charges, and commissions related to its annuities.
• A settlement with Apple was finally approved in November 2018 after consumers alleged Apple failed to disclose to consumers that certain paid subscriptions on iTunes would be automatically renewed.

Deceptive Claims

• On February 13, 2019, Canada Dry Ginger Ale settled a class action lawsuit for $11.2 million after consumers challenged the claim on its label that the soda was “Made from Real Ginger.”
• In January 2019, a class action lawsuit was filed against National Beverage Corporation for allegedly marketing LaCroix sparkling waters as “natural” when, the plaintiffs claim, the drinks contain synthetic ingredients.

Paid Endorsements

• The Federal Trade Commission proposed consent orders against a PR firm and a gymnastics magazine that paid two Olympic gold medal gymnasts to promote an insect repellant without disclosing that the athletes were paid.
• In a similar case, the Truth in Advertising organization, a consumer watchdog, encouraged the FTC to investigate the liquor maker Diageo’s use of social media influencers to market its Cîroc vodka on Instagram. The TINA alleges that Cîroc’s promoters, including Sean “Diddy” Combs, failed to disclose their material relationship with the vodka brand in a manner that is clear and conspicuous.

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