Moore’s Musings – Page 4 – Northern California Recycling Association

Federal Court Upholds Alameda County Pharma EPR Ordinance

MOORE’S MUSINGS
By John Moore, Henn, Etzel and Moore
A semi-monthly feature, exclusive to NCRA News, from NCRA general counsel and board member John Moore, concerning recent legal decisions relating in some manner to Zero Waste.

FEDERAL COURT UPHOLDS ALAMEDA COUNTY PHARMA EPR ORDINANCE
Not unexpectedly, a 3 judge panel of the Ninth Circuit Court of Appeal unanimously agreed that Alameda County’s pharma EPR ordinance is constitutional in the case of PRMA v. County of Alameda, rejecting claims by drug manufacturers and their allies that the ordinance violated the Commerce Clause. The Court affirmed a Judgment to the same effect by Judge Richard Seeborg of the Northern District of California.

According to the Court, “pursuant to the Ordinance, manufacturers must set up disposal kiosk sites throughout (Alameda County). The kiosks will consist of disposal bins located in areas ‘convenient and adequate to serve the [disposal] needs of Alameda County residents.’ Manufacturers must also promote the stewardship program to the public via ‘educational and outreach materials.’ After collection, the prescription drugs must be destroyed at medical waste facilities. The manufacturers are free to individually operate separate product stewardship programs or to jointly operate a program with one or more other manufacturers. If manufacturers choose to operate a program jointly, the Ordinance requires that the program’s costs be spread fairly and reasonably among the manufacturers. The manufacturers may run the stewardship program themselves, or they may pay a third-party to operate the stewardship program on their behalf. Assuming the manufacturers jointly operated a stewardship program, the start-up costs would approximate $1,100,000.”

County estimated that, “a total annual cost to each manufacturer between $5,300 and $12,000.” The Court accepted that County-wide sales of prescription drugs in 2010 were $965 million and that sales have not declined since then.

The Commerce Clause of the US Constitution has been the lynchpin of many cases involving flow control- the lawfulness of a local jurisdiction commanding that solid waste be disposed at specific facilities. The test for whether a law violates the Commerce Clause generally is “When a state statute directly regulates or discriminates against interstate commerce, or
when its effect is to favor in-state economic interests over out-of-state interests, [the Court has] generally struck down the statute without further inquiry.

When, however, a statute has only indirect effects on interstate commerce and regulates evenhandedly, [the Court has] examined whether the State’s interest is legitimate and whether the burden on interstate commerce clearly exceeds the local benefits.”

The Ninth Circuit found that the Ordinance did not implicate either test. Although the Court analyzed each test carefully as applied to the Ordinance, most telling was the Court’s dismissal of most of the challengers’ arguments as not supported by any legal authority. Nor did the Court doubt that the Ordinance legitimately furthered the County’s interest in safe disposal of post-consumer prescription drugs. Interestingly, while prescription drugs sold across state lines clearly are part of interstate commerce under the Commerce Clause, the Supreme Court has never clearly stated why “solid waste” is an article of interstate commerce.

From the vantage of this author, this was a frivolously-filed case doomed from the start designed to impose cost and delay on the County. The Ninth Circuit should sanction the plaintiffs in this case and order them to pay all of the County’s fees and costs in this litigation.

Among the amici supporting the County were the League of California Cities and NRDC.

Graft in Awards of Solid Waste Franchises – How Shocking

MOORE’S MUSINGS
A monthly feature, exclusive to NCRA News, from NCRA general counsel and Board member John Moore, concerning recent legal decisions relating in some manner to Zero Waste.

GRAFT IN AWARDS OF SOLID WASTE FRANCHISES – HOW SHOCKING
On May 30, 2014, the California Court of Appeal, Second Appellate District, decided an interesting case involving the intersection between the award of a solid waste franchise and the prospective franchisee’s financial contributions to a city two elected officials who would vote to approve the franchise. The case involved the City of Montebello and Arakelian Enterprises, Inc. dba Athens Services (Athens) that had an exclusive contract to provide residential waste hauling services in Montebello since 1962. While the underlying lawsuit filed by the City addressed whether the city officials had violated Government Code Section 1090’s prohibition against city officers being “”financially interested in any contract made by them in their official capacity, or by any body or board of which they are members.” the appeal addressed whether the City’s lawsuit was subject to anti-SLAPP protections. The City also sought an order requiring any appellants found to be financially interested in the Athens contract to disgorge to the City any money they received from Athens. Athens’ executive vice president declared Athens made no promise to contribute to any city council members in exchange for their votes.

Sometime in 2007, while running for city council, Robert Urteaga approached Athens and suggested it submit a proposal to the city council to become the exclusive commercial and industrial waste hauling service in Montebello, in addition to being the City’s exclusive residential waste hauling service. Athens later contributed to Urteaga’s campaign, and he was elected to the city council.

In 2008, Richard Torres, the City Administrator, worked with Athens to negotiate the terms of an exclusive contract, under which Athens would provide improved residential trash hauling services at no increased price and also become the exclusive commercial and industrial waste hauling service beginning in 2016. In exchange for this exclusivity, Athens agreed to make a one-time $500,000 cash payment to the City.

Athens’ proposal was addressed at a city council meeting on July 23, 2008. In a 3-2 vote, Councilmembers Rosemarie Vasquez, Urteaga, and Kathy Salazar voted in favor of the contract and the mayor and another council member against it.

Vasquez ran for reelection in November 2009 and Athens contributed $45,000 to her campaign. She was not reelected. Athens also contributed $37,300 to efforts to defeat the mayor’s reelection campaign, but the mayor was reelected. After the November 2009 election, City voters qualified a special election to recall Urteaga and Salazar. Athens sponsored a “Say No to Recall” campaign to which it contributed $353,912.73. The campaign was unsuccessful, and both Urteaga and Salazar were recalled.

Once approved, the contract required the mayor’s signature to effectuate it. The mayor, however, refused to sign the contract for over six weeks, stating he was attempting to verify its terms and ascertain the legal effect of a pending referendum effort by independent waste haulers in opposition to the Athens contract. On September 12, 2008, the contract was still awaiting the mayor’s signature. Vasquez then signed the contract as Montebello’s mayor pro. tem., stating she was authorized to do so because the mayor’s refusal to execute the contract rendered him “absent” for purposes of the agreement.

Under California law (Code of Civil Procedure Section 425.16), a lawsuit “brought primarily to chill the valid exercise of constitutional rights of freedom of speech and petition for the redress of grievances” can be stricken on motion. Once the motion is filed, all action on the main case stops until the motion is decided and any appeal from such decision is also decided. This “stay” action invites SLAPP motions intended to delay the underlying suit. Now that the appeal is decided, the City’s lawsuit may proceed.

As the Court of Appeal correctly observed, in evaluating an anti-SLAPP motion, it must conduct a two-step analysis. First, it must decide whether the defendant “has made a threshold showing that the challenged cause of action arises from protected activity.” (Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 488.) For this purpose, protected activity “includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (§ 425.16, subd. (e).)

Second, if the defendant makes this threshold showing, the Court decides whether the plaintiff “has demonstrated a probability of prevailing on the claim.” (Taheri Law Group v. Evans, supra, 160 Cal.App.4th at p. 488.) Only a cause of action that satisfies both prongs of the anti-SLAPP statute–i.e., that arises from protected speech or petitioning and lacks even minimal merit–is a SLAPP, subject to being stricken under the statute.

The defendant city officers argued that their conduct in connection with the Athens franchise was protected speech. The Court disagreed, citing Supreme Court precedent to the effect, “A legislator’s vote and “acts of governance mandated by law, without more, are not exercises of free speech or petition. The Supreme Court reasoned that because a legislator casts his vote as a political representative executing the legislative process on behalf of his constituents, he has no personal right in his vote. A legislator’s act of voting is therefore “conduct engaged in for an independent governmental purpose,” not an act of communication conveying the legislator’s personal message.

With this skirmish out of the way, the Los Angeles County Superior Court may now decide how much financial contribution by a prospective franchisee to a city officer or elected is too much.

Protect Your Brand Or Else

PROTECT YOUR BRAND OR ELSE
Attendees at RU19 witnessed the passion of Gary Liss in protecting the “Zero Waste” brand from corruption. Many NCRA members brand their own businesses and programs – i.e., Giagiantic Ideas Studio, Rethink Waste, SF Environment, Urban Ore… Protecting one’s brand protects the purity of the vision as well as the economic benefits. Failing to protect one’s brand, at least in one case, can lead to millions of people calling for your murder.

The saga of Cindy Lee Garcia was stated succinctly in a recent case from the Ninth Circuit Court of Appeals:
“While answering a casting call for a low-budget amateur film doesn’t often lead to stardom, it also rarely turns an aspiring actress into the subject of a fatwa. But that’s exactly what happened to Cindy Lee Garcia when she agreed to act in a film with the working title “Desert Warrior”.

The film’s writer and producer, Mark Basseley Youssef – who also goes by the names Nakoula Basseley Nakoula and Sam Bacile – cast Garcia in a minor role. Garcia was given the four pages of the script in which her character appeared and paid approximately $500 for three and a half days of filming. “Desert Warrior” never materialized. Instead, Garcia’s scene was used in an anti-Islamic film titled “Innocence of Muslims.”

Garcia first saw “Innocence of Muslims” after it was uploaded to YouTube.com and she discovered that her brief performance had been partially dubbed over so that she appeared to be asking, “Is your Mohammed a child molester?” These, of course, are fighting words to many faithful Muslims and, after the film aired on Egyptian television, there were protests that generated worldwide news coverage. An Egyptian cleric issued a fatwa, calling for the killing of everyone involved with the film, and Garcia soon began receiving death threats. She responded by taking a number of security precautions and asking that Google remove the video from YouTube.”

That Ms. Garcia faced death threats because of the use of her likeness in a manner to which she did not consent, mattered not to YouTube, or its parent, Google. Nor did it matter to the US District Court judge in Los Angeles, who denied her motion for a preliminary injunction to require YouTube to remove the video. That judge ruled that Garcia “had delayed in bringing the action, had failed to demonstrate ‘that the requested preliminary relief would prevent any alleged harm’ and was unlikely to succeed on the merits because she’d granted Youssef an implied license to use her performance in the film.”

Nor, of course, is there any way to get the genie of a video back in the bottle once it is posted on the internet.

Garcia was now at the mercy of legal time. She filed her lawsuit on September 26, 2012. Her request for an injunction was denied November 30, 2012. She appealed to the Ninth Circuit on December 21, 2012. The Ninth Circuit’s order requiring YouTube to remove the video was filed February 28, 2014. For over 18 months Garcia has lived under fatwa. As of this writing, the video is still available on YouTube.

Ultimately Garcia prevailed in the Ninth Circuit by the slimmest of margins; only 2 of the 3 judges on the panel agreed that she needed protection – and those 2 are among the most politically conservative on the Court.

The 2-1 split on the Court reveals diverging views on the interpretation of copyright law and the procedure for obtaining preliminary injunctions. One could argue that the majority fashioned a “result-oriented” decision that is light on respecting past precedent. But one can’t argue that Ms. Garcia might have improved her legal position with firmer bargaining with the film producer before she allowed her likeness- her brand so to speak – to be used.

A brand may be a name, or a stylized name such as a logo. A name or brand used across state lines may be eligible for trademark protection. A name or brand used only in California may be eligible for a California trademark.

Original works of authorship in a tangible medium of expression, such as books, pictures, music, and computer code, may be eligible for copyright protection. Protection is given to both published and unpublished works, although registration with the US Copyright Office is a pre-condition to suing someone for infringing the copyright. Joint efforts to create works of authorship creates ownership rights in all of the contributors. Contracts are useful to clarify the ownership rights in a joint effort or a derivative work where one original work is used in a later, different one.

In Othello, when Iago says, “I am not what I am” he is concealing his true nature and plan, with fatal consequences. When Cindy Lee Garcia’s producer concealed his true intentions to use her likeness, it potentially had fatal consequences. Failing to protect one’s brand may have consequences fatal to the economic benefits and vision of the brand. Like Desdemona and Ms. Garcia, the brand is worth protecting.