An avid yoga practitioner, Becky is interested in exploring ways of connecting her passions for law and yoga; recently she had the opportunity to share yoga techniques for relaxation with the firm.

HS&A is excited Becky has joined their outstanding team.

On May 10, Jack Schaedel attended the California State Civic Learning Award Ceremony at San Marino High School.  SMHS was honored for a series of curricular and extra-curricular programs involving students in civic participation.  Jack’s contribution during the year was to serve as a judge in a mock trial of the Frankenstein monster for a senior English class taught by Jacqueline Schaedel.  “We explain to the students the basics of how a trial works, as well as some substantive criminal law relating to the M’Naughten rule, the insanity defense, and things I don’t get to do too often as a civil litigator,” said Jack.  “It is quite exhilarating to see the kids take to direct and cross examination so quickly, and of course, we make the jury deliberate publicly.”

The May 10 event was headlined by California Supreme Court Chief Justice Tani Cantil-Sakauye, who told of her upbringings as the daughter of farmworkers, and stressed her mantra that “liberty and justice for all” is meaningless without the “for all” part.  The Hon. Kim McLane Wardlaw of the Ninth Circuit United States Court of Appeals, The Hon. Justice Roger Boren of the Second District California Court of Appeal, and The Honorable Judges David Wesley, Judith Chirlin (ret.), Patrick Cathcart, and Elizabeth Feffer, of the Los Angeles Superior Court also were in attendance.  Judge Wardlaw addressed a packed auditorium as did United States Representative Judy Chu and California Assemblyman Ed Chau.  Jack enjoyed a brief and energetic discussion with Rep. Chu about her work on the House Judiciary Committee.  Jack also enjoyed meeting San Marino Mayor Richard Ward and several members of the San Marino School Board.  He was most impressed by the students who spoke about their civic activities both on and off campus.

Chris Norgaard, SMUSD Board Member, invoked Benjamin Franklin’s famous response to a woman who asked him in the 1780’s what kind of government the Founders had created.  “A republic . . . if you can keep it.”  Norgaard stressed that the “you” Franklin charged was not an elected official or one particular person.  He was charging each of us to keep our Republic, and he proudly concluded that the public officials, students and teachers in attendance were fulfilling Franklin’s charge.

Yesterday Angelina Jolie revealed in a brave and candid op-ed in the New York Times that she underwent a preventative double mastectomy earlier this year after discovering that she carried a “faulty” gene that placed her at an increased risk of developing breast and ovarian cancer.  Ms. Jolie wrote about losing her mother to breast cancer after a 10-year struggle with the disease.  The actress stated that she felt empowered by her decision to undergo the mastectomy, which reduced her chances of developing breast cancer from 87 percent to under 5 percent.

The faulty genes referenced in Ms. Jolie’s article are called BRCA1 and BRCA2 and are currently a source of dispute in the medical research community. Ms. Jolie’s article comes in the wake of oral argument last month before the Supreme Court in Association for Molecular Pathology, et al. v. Myriad Genetics, Inc., et al. (Docket 12-398) regarding the right to patent the BRCA1 and BRCA2 genes.

Myriad Genetics, a biotechnology company based in Salt Lake City, discovered and isolated the genes, which are associated with hereditary breast and ovarian cancer. Myriad applied for patents on the two genes and received the first patent for the BRCA1 gene in 1997 and the first patent for BRCA2 in 1998. The patents gave Myriad a 20-year monopoly over the use of the genes for research, diagnostics and treatment.

On May 12, 2009, a group of researchers, medical groups and cancer patients led by the American Civil Liberties Union and the Public Patent Foundation filed a lawsuit against Myriad, the U.S. Patent and Trademark Office and other defendants. The lawsuit alleges that Myriad’s patents are invalid and unconstitutional.

In 2010, a federal judge in New York agreed and invalidated Myriad’s patents. In November, the Supreme Court granted certiorari and agreed to hear argument on the patentability of human genes. The Court has consistently held that laws of nature, abstract ideas, and natural phenomenon cannot be patented. The  Court must now decide whether human genes are patentable and therefore eligible for patent protection under the  Patent Act, which defines the scope of patentable subject matter in 35 U.S.C.§ 101.

The Association for Molecular Pathology and others who have filed the suit against Myriad argue that a private company should not be able to own a patent based on a gene that was invented by Mother Nature.  They assert that since a gene patent holder has the right to prevent anyone from studying and testing a gene, Myriad’s patents improperly block scientific research and medical diagnostic testing. They also point out that allowing genes to be patented has kept data on variants linked to cancer in the hands of a private company.

Myriad contends that the isolated genes that they hold patents for don’t occur in nature in the isolated form, and subsequently are patentable subject matter.  The company argues that patents are the key to making medical discoveries possible. Companies spend millions on medical research in hopes of making and being able to patent new discoveries. Without the financial incentive, new scientific discoveries may be stifled. Myriad says it deserves the patent because it has invested a great deal of money to figure out the sequence and develop a synthetic molecule based on the sequence that can be used to test the variants in a patient.

Since Myriad’s discovery of the BRCA1 and BRCA2 genes, over a million people have taken the company’s BRACAnalysis test, which screens for key mutations in the genes. Those with a mutation in either gene, like Angelina Jolie, have an increased risk of developing breast and ovarian cancer and may elect to undergo a preventative mastectomy or oophorectomy (surgical removal of the ovaries) in order to reduce that risk. Myriad’s current monopoly allows the company to control the price of the test, which at over $3,000 is prohibitive and not affordable for most.

The Supreme Court is expected to rule on the case by the end of June.  The ruling will not only have a profound impact on medical research, but may also impact Myriad’s ability to charge $3,000 for the BRACAnalysis test.

If you or someone you know has questions about intellectual property matters, please contact us for a consultation by emailing info@hernlaw.com or calling 626.440-0022.

Abercrombie & Fitch’s CEO Mike Jeffries and his controversial comments from a 2006 Salon article are back in the hot seat. Jeffries told the magazine, “In every school there are the cool and popular kids, and then there are the not-so-cool kids. Candidly, we go after the cool kids. We go after the attractive all-American kid with a great attitude and a lot of friends. A lot of people don’t belong [in our clothes], and they can’t belong. Are we exclusionary? Absolutely.”

Unfortunately for Jeffries and Abercrombie, if that is what they “go after” when hiring employees, then his statements are potential evidence of national origin or race discrimination against anyone who applies, doesn’t look “attractive all-American,” and doesn’t get hired. Jeffries has already admitted as much. Regarding the “emotional experience” in his stores, he also said back in 2006, “It’s almost everything. That’s why we hire good-looking people in our stores. Because good-looking people attract other good-looking people, and we want to market to cool, good-looking people. We don’t market to anyone other than that.”

Particularly in light of the recent announcement that Wet Seal, another teen apparel chain, will pay $7.5 million to settle a federal class action lawsuit for racial discrimination, Abercrombie may want to rethink its values and message not only to consumers but also to potential employees. In Cogdell v. Wet Seal, the class action lawsuit alleging violations of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964 and filed in the Central District of California, the plaintiffs argued that the company adopted a policy of hiring and denying promotions, pay, and benefits to its black employees in favor of hiring white employees who better captured the company’s “brand image.” Wet Seal corporate officials openly commented in statements and correspondence that the stores had too many black employees, that they weren’t right for the job, and that the store should hire more people with “the Armani look.” A senior vice president even made a comment that she would have preferred that the black store manager have “blond hair and blue eyes.” Even more disturbingly, Wet Seal corporate executives directed a manager to “diversify” her staff by hiring more non-black employees, or risk termination. The Cogdell settlement requires Wet Seal to not only compensate current and past employees but also hire experts and overhaul human resources to ensure that the company’s marketing, recruiting, hiring, promotion, and compensation policies and practices reflect improved and valued diversity in the stores.

Jeffries’ 2006 message equates the all-American kid (traditionally perceived as white) with being cool, popular, and attractive, implicitly excluding or rejecting people who don’t fit into the mold, which could include employees. Jeffries’ and Abercrombie’s values in marketing to a target audience of “attractive all-American” teens and his stated policy of hiring “good-looking people” in Abercrombie’s stores presents a real threat of liability regarding discriminatory employment practices.

Employers should take notice and ensure that their marketing and hiring policies reflect equal employment opportunity values. If you are an employer interested in learning more about compliance with anti-discrimination and retaliation laws, please contact us by emailing info@hernlaw.com or calling 626.440.0022 for a consultation.

On May 3, 2013, we reported on the Bangladesh garment factory collapse at Rana Plaza and its connections to the Triangle Shirtwaist fire of 1911.  Since then, the Rana Plaza tragedy has deepened as the death toll has soared to over 1,000, placing it among the worst workplace disasters in history. Amidst the tragedy, rays of hope have emerged as it appears governmental bodies and clothing retailers are taking steps to prevent future occurrences. Government officials arrested the owner of Rana Plaza as well as eight owners of other the garment factories in the building. Officials report that the owner illegally added three floors to the building and allowed garment factories to install heavy machinery and generators even though the building was not designed to support this type of equipment. Although 18 plants have been shut down due to poor safety standards since the April 24 tragedy, with more than 4,000 factories throughout the country more oversight is needed. Bangladesh’s apparel and garment industry, worth $20 billion, accounts for 80 percent of Bangladesh’s annual export income and employs approximately four million people. In fact Bangladesh is the second-biggest exporter of clothing in the world. For a country with a 2012 GDP of $118.7 billion, this is a huge part of the economy.

Perhaps with continued international pressure, the threat of mass exodus from retailers (the Walt Disney Company announced on May 1 that it was ending its apparel production in Bangladesh), and companies such as The Gap and Wal-Mart’s investments in fire and safety training for factories in its supply chain, government and business leaders will put renewed effort into enforcement of workplace safety laws already on the books. The tragedy again presents an opportunity to explore how to use and expand other countries’ laws, such as the TSCA, to encourage accountability along the international supply chain. The garment industry certainly generates enough money that improvement of human conditions and safety in the workplace could prevail without destroying the economy or the apparel sector.

Employers concerned about worker conditions and workplace safety generally should take notice and monitor California’s Transparency in Supply Chain Act and related laws. If you are a large retailer and have concerns about your supply chain, please contact us by emailing info@hernlaw.com or calling 626.440.0022 for a consultation to discuss responsibilities as opportunities.

This month is less than half over and already, two well-known works have been subject to different lawsuits dealing with copyright issues.

Harper Lee, author of the acclaimed novel, To Kill A Mockingbird, has brought suit against the son-in law of her former literary agent over the copyright for the novel.  The lawsuit was filed in a federal court in New York.  It alleges that Samuel Pinkus failed to properly protect the copyright of the book after his father-in-law Eugene Winick (Lee’s original literary agent) fell ill about ten years ago.  Lee, now 87, alleges that Pinkus took advantage of her poor hearing and eyesight seven years ago to get her to assign the book’s copyright to him and a company he controlled.  Such actions, Lee says, constitute prohibited self-dealing and violate Pinkus’s duty of loyalty to her as her agent.  Lee is taking legal action to have the copyright reassigned, but alleges that Pinkus still received commissions he was not entitled to.  Where is Atticus Finch when you need him?

Second, musicians Usher and Justin Bieber have been sued for $10 million in a copyright infringement suit.  R&B singer Devin Copeland, who is known professionally as De Rico, and songwriter Mareio Overton filed suit last week in US District Court against Bieber and Usher alleging that they came up with the song “Somebody to Love.”  Bieber’s version of “Somebody to Love” was released in 2010 and reached No. 15 on the US Billboard chart.  Copeland and Overton allege that “Somebody to Love” has the same title, time signature, underlying beat patterns, as well as similar chords and lyrics.  They allege that the similarities are so numerous that this is far beyond mere coincidence.  They allege that music scouts presented the song to Usher in 2009.  Copeland then spoke with Usher’s mother, who sometimes acted as his manager.  The lawsuit alleges that she said Usher had listened to the song and wanted Copeland to re-record it and tour with Usher.  After that, Copeland says he never heard back from Usher.  In late summer of 2010, Overton heard Bieber’s version of the song on the radio and immediately contacted Copeland.  The lawsuit sets forth 17 musical similarities between the two versions.  The lawsuit names 19 defendants, including Bieber, Usher, song co-producers and their record label.  Guess Overton and Copeland aren’t Beliebers…

If you or someone you know has questions about copyright infringement or other intellectual property matters, please contact us for a consultation by emailing info@hernlaw.com or calling 626.440.0022.

On May 2, 2013, seven members of the HS&A team, Agnès M. Sullivan, Amanda Smith, Becky Raizman, Carrie Thompson, Christina Paquette, Jamie L. Lopez, and Kristin L. Petersen, attended Pasadena Magazine’s fifth annual Women in Business Luncheon 2013 at the beautiful The Langham Huntington Hotel in Pasadena. Several hundred professional women attended the event, which featured keynote speaker Jamie Naughton, Speaker of the House at Zappos, who presented about how to make happiness a priority and delivering happiness in workplace culture.

By Becky Raizman & Jack Schaedel -

On March 25, 1911, 148 garment workers, mostly poor, Jewish and Italian immigrant women, died in a catastrophic fire at the Triangle Shirtwaist Company’s factory in New York City. The death toll was so high in part because managers had locked stairwell and exit doors to prevent stealing and unauthorized breaks, and as a result many of the workers could not escape from the building after the fire broke out. The tragedy galvanized labor activists, spurring the creation of the state’s Factory Investigating Commission and new laws mandating improved safety and general labor conditions.

More than one hundred years later, in the aftermath of the Rana Plaza factory collapse in Bangladesh which killed at least 386 people, and a fire at the Tazreen Fashion factory in the capital city of Dhaka last year which killed 100 people, garment workers’ safety and working conditions clearly remain of serious concern. As the hope for finding survivors dwindles, the building’s collapse raises questions about liability for employers and manufacturers in the supply chain. Companies with ties to the garment manufacturing factories inside the building have issued various statements mostly focused on whether or not they had apparel currently in production at the factory. Advocacy groups such as the Clean Clothes Campaign are pushing for companies that obtained garments from the building’s five factories to contribute to a compensation fund for victims, most of whom were earning an average monthly salary under $100 per month.

California already has a law on the books that may enter the conversation about workplace safety and conditions for low-wage workers.  The Transparency in Supply Chains Act of 2010 (TSCA) requires that certain large retail sellers and manufacturers doing business in California make disclosures that outline their efforts to eradicate slavery and human trafficking from their direct supply chain for tangible goods offered for sale. The law specifically targets big business: manufacturers doing business in California with annual worldwide gross receipts that exceed $100 million. California Civil Code Section 1714.43 codifies the law’s requirements, which detail what types of employers must comply, what information about the product supply chain’s practices must be verified and disclosed, requirements to audit and certify compliance with company standards and laws of the countries they are doing business in, and obligations to train responsible employees and management. Although TSCA does not require a company to actually undertake preventative measures to eliminate slavery and human trafficking, it does require companies to disclose what they have done (or failed to do) to prevent these oppressive practices. The California Attorney General’s office is responsible for the TSCA’s enforcement, but the law lacks teeth, as the exclusive remedy is injunctive relief obligating the offending company to post the applicable TSCA disclosures; no private right of action is available. In fact the Attorney General’s office has yet to initiate a TSCA prosecution since the disclosure requirements took effect in January 2012.

Due to the garment industry’s tangled web of sellers, contractors, sub-contractors, and manufacturers, companies may claim they are not and cannot be in complete control of the supply chain. After all, the supply chain includes fiber, yarn, fabric, and garment manufacturing before the finished product makes it to your local retailer. But TSCA casts aside that explanation, placing a disclosure and enforcement burden up and down the supply chain. Companies have been required to post TSCA disclosures since January 1, 2012, and a quick Google search reveals that many international companies doing business in California, from GE and HP to Gucci and The Gap, devote a page on their websites to the TSCA, not only disclosing business efforts to eradicate slavery and human trafficking but also promoting their other human rights and sustainability efforts.

So what legal responsibility might a California employer covered by the TSCA have for workplace fires and collapses that occur in factories abroad? Right now, the answer appears to be none, at least under the TSCA, since it pertains only to the companies’ obligations to make limited affirmative disclosures and the definitions of slavery and human trafficking (mainly forced labor and child labor) do not overlap with the recent Bangladesh tragedy. But given the law’s reach to international companies and intent to increase awareness about ethical business practices, it is possible that the state legislature may turn attention to toughening up the TSCA, or expanding its scope to workplace safety and greater accountability for worker health and safety protections up and down the supply chain. As we recall the legacy of the Triangle Shirtwaist Fire, and as more media attention focuses on where consumer products come from and the conditions of workers making those products, advocates and lawmakers may explore expanding TSCA coverage to worker health and safety threats beyond human trafficking, or even explore broadening liability.

Employers concerned about worker conditions and workplace safety generally should take notice and monitor the TSCA and related laws. If you are a large retailer and have concerns about your supply chain, please contact us by emailing info@hernlaw.com or calling 626.440.0022 for a consultation to discuss responsibilities as opportunities presented by the TSCA.

The National Association of Professional Women has named HS&A’s Director of Operations, Valeri Cantrell, a Professional Woman of the Year for the state of California for 2013/2014. Cantrell was selected by the NAPW VIP Division for her outstanding leadership and commitment within the profession. “I am honored to be recognized for my work at Hernandez, Schaedel & Associates. I strive to apply my strong work ethic and enthusiasm for life into my career and I am fully committed to being the best I can possibly be,” said Cantrell.

NAPW only selects one woman of the year in any given profession for each state. Candidates are selected by the NAPW Board of Directors to honor professional members that meet their criteria of demonstrated excellence and dedication within their profession.

As Director of Operations at HS&A, Cantrell’s key responsibilities include hiring, training, organization development, employee relations, accounts payable, receivable, and reconciliation. “I am very pleased that the National Association of Professional Women has chosen Valeri. Having worked closely with her for seven years, I can attest that Valeri is the consummate professional. Highly intelligent, diligent and capable, Valeri has great communication skills and is highly regarded by all her colleagues,” says Don Hernandez, the firm’s Managing Partner. “Our success as a firm simply would not have been possible without Valeri’s consistently high contribution. I and the firm’s other professionals owe her a tremendous debt of thanks.”

All of us at the firm offer our sincerest congatulations to Valeri on being recognized and selected to receive this award. Please visit the NAPW website to learn more about our award winner.