Colorado Law Blog

The U.S. Chamber of Commerce has aggressively pursued an anti-civil litigation campaign for decades, with statements such as: America's Out-of-Control Civil Lawsuit System Hurts Businesses, Employees, and Families, and Frivolous lawsuits are crippling our legal system and sucking the vitality out of American businesses.

The climax of the hoax was a staged news conference at the National Press Club. A member of the Yes Men troupe, posing as a U.S. Chamber of Commerce spokesman named "Hingo Sembra," fielded reporters' questions, achieving with perfect pitch the grim gentility that characterizes Chamber communications. Before long, an agitated Chamber employee came on the scene, confronted the Yes Men and informed the puzzled assembly that they had been had.

A video recording of the proceedings, in all their wince-inducing detail, has been posted on YouTube, where it's been viewed more than 200,000 times and received a boatload of media attention.

The Chamber announced Monday that it had filed suit against the Yes Men gang, casting the suit as a garden-variety action to protect the organization's intellectual property -- specifically, two registered trademarks. The organization's chief in-house lawyer called the suit "a customary response by any organization faced with this type of misconduct by the defendants."

But that's simply not the case. Far from a narrowly cast trademark protection lawsuit, this is blunderbuss, seven-count complaint filed by a major Washington, D.C., firm in U.S. District Court, with the Chamber asking for an injunction (including removal of YouTube videos), a jury trial, damages, attorneys' fees and "such other relief as may be appropriate."

The chamber is suing the Yes Men for trademark infringement, unfair competition and false advertising, according to the Wall Street Journal's Washington Wire blog. The suit (PDF posted by the Washington Wire) was filed late Monday in federal court in Washington, D.C.

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Just in time for Halloween, a Canadian law professor has put together a round-up of vampire and zombie references in legal jurisprudence. There have been more than 200 such mentions during the past 50 years, with the vast majority in the United States, found Sharon Sutherland of the University of British Columbia. A teacher of theater as well as law classes, she has long been interested in the fictional world of the undead as portrayed in Buffy the Vampire Slayer and other popular television programs.

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Losing key members and facing political headwinds, the U.S. Chamber of Commerce spent a record $34.7 million in the third quarter lobbying against the Obama administration's proposals to overhaul energy policy, financial regulation and health care.

The Chamber's money paid for more than a dozen lobbyists to visit Congress, the White House and agencies from Agriculture to Treasury. Most of the Chamber's positions -- free trade, unfettered credit card lending, Cash for Clunkers rebates -- enjoy broad support among the Chamber's diverse corporate members.

Yet, on one broad issue considered critical to the Obama administration's success the Chamber's anti-regulatory postures has created a rift. On the question of how to address climate change, the Chamber has seen a growing number of companies defect. They say the self-proclaimed "voice of business" doesn't speak for them when it denies global warming and lobbies against climate change legislation.

Early and high-profile departures included Apple Inc., Exelon Corp., Pacific Gas and Electric Co. and the Public Service Company of New Mexico. On Tuesday, Mohawk Fine Paper, a privately-held paper manufacturer based in Cohoes, N.Y., joined them.
Last month, Nike Inc., one of the founders of a business coalition whose goal is to "pass meaningful energy and climate change legislation," resigned from the chamber's board of directors to protest its stance. But Nike said it remains a member so it can work from within to promote climate change legislation.

White House officials suggest that the exodus shows that the group is out of touch and unable to negotiate the new political climate. The tension led some observers to question whether the Chamber's influence was waning.

Criticism of the chamber's stance on climate change took an odd turn Monday when a group of pranksters called the Yes Men held a fake news conference, posing as chamber representatives at the National Press Club in Washington. They announced that the chamber had reversed its position on climate change and would stop lobbying against the Senate's 800-page climate bill.

In a statement denouncing the hoax, the chamber said it "believes that strong climate legislation is compatible with the goals of improving our economy and creating jobs."

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Before heading to a store or retail Web site, many shoppers love to check out the growing flurry of product reviews posted online. But figuring out who to trust in the blogosphere has gotten trickier as more and more bloggers get paid to promote products on their sites.

Companies see the freebies and payments to bloggers as a cheap way to boost brand buzz during the recession. But site visitors often don't realize they're reading a promotional pitch. Not all bloggers make clear that they are being compensated to talk up products, if they disclose it at all.

But many bloggers are condemning the erosion of trust such activities create. A growing number of bloggers are speaking out about the need to be more up front with readers about arrangements with corporate America. Advocates of more disclosure argue that the credibility of their collective writings will suffer if readers cannot discern company shills from honest voices .

And now the Federal Trade Commission has issued new guidelines designed to set clearer rules for disclosure in social media influencer campaigns. The guidelines, approved in unanimous vote, state that bloggers who have received money or "in-kind payment" tied to product reviews must disclose such deals to readers. Companies that refer to a research group finding about a product must disclose any relationship with that organization. Violators face fines of up to $11,000 per infraction.

The new rules are the first update the FTC has made to its guide for testaments and endorsements in advertising since 1980. They bring into sharper focus the relationship of bloggers and brands. The FTC chose not to make a distinction between professional bloggers and amateurs. It also does not differentiate between paying cash and providing product samples.

Experts said the new regulations would have little impact on marketers following standard practices. The FTC said marketers and bloggers must follow the rules even if there is no requirement for a positive product review.

The updated guidelines also tighten the rules for celebrities, requiring them to disclose their relationships with advertisers when discussing a product in interviews or social media. Celebrities are now responsible for the claims being made.

The new guidelines were much anticipated following commission officials expressing the need to regulate the growing business of social-influencer programs. Companies regularly send bloggers products for review, and new businesses have sprung up to garner endorsements in social media channels like Twitter.

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The most likely rescue victim in a national park? Young men hiking on a weekend who make a bad decision or two and end up hurt, exhausted or lost. On average, 11 search-and-rescue operations are launched in national parks every day. While expenses average about $900, the price can easily jump into the thousands of dollars, according to a new analysis of search-and-rescue operations over 15 years.

Nearly half of the calls for help are for hikers, often for the day, who are caught unprepared, get hurt or sick, or underestimate the wild landscape. The results are similar to an analysis published earlier this year of national parks in Utah, which found young male day hikers were among those most likely to need rescuing.

In the last couple of weeks, rescuers helped a father and son whose ultralight plane crashed in Utah's Zion National Park, pulled three teenagers and one of the boy's mothers from a cliff face at Glen Canyon National Recreation Area on the Utah-Arizona border and launched four separate searches over two days for missing hunters and hikers in Arkansas' Buffalo National River area.

Heggie's study, published in the latest issue of the journal Wilderness and Environmental Medicine, was an attempt to quantify the "untold story" of national parks' search-and-rescue operations and see how much they cost. He found more than 65,000 operations in 1992-2007 with expenses exceeding $58 million.

The study also said that in 2005, half of the operations were in just five spots: Arizona's Grand Canyon National Park, New York's Gateway National Recreation Area, California's Yosemite National Park, Colorado's Rocky Mountain National Park and Nevada's Lake Mead National Recreation Area.

In a typical year, rescues include people stranded on cliffs, desert dunes, mountaintops and in the water of man-made reservoirs. Some parks have full-time rescue teams while others rely on park staff with other jobs who have rescue training.

In 2007, $4.7 million was spent in national parks across the country looking for lost, stranded or injured visitors, according to Park Service figures. More than 97 percent of searches were successful within 24 hours.

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The operators of Crowley County Correctional Facility, a Colorado private prison, have agreed to pay $1.3 million to settle a lawsuit alleging that male officers forced female workers to perform sex acts to keep their jobs. The federal Equal Employment Opportunity Commission announced the settlement with the Dominion Correctional Services LLC and Nashville, Tenn.-based Corrections Corporation of America this past Tuesday. Crowley County Correctional Facility is located in Olney Springs, Colorado - just outside of Pueblo.

In one case, the EEOC alleged that a female officer who complained about being sexually harassed by a male co-worker was subsequently placed in an isolated location where she was raped by the man she complained about. A female officer also said the prison's former security chief forced her to have sex to keep her job.

The companies didn't admit liability as part of the settlement. CCA bought the prison from Dominion in 2003 and said most of the more serious allegations in the lawsuit dated from the time Dominion operated the prison. In a written statement, CCA spokeswoman Louise Grant said the company settled the claim to avoid the time, expense and uncertainties of a trial.

EEOC acting Chairman Stuart J. Ishimaru told the New York Times that the agency sees many sexual harassment cases but that the allegations in the complaint against the prison were ''shocking.''

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As Halloween approaches, parents should get ready too. The stores are chock full of costumes for wee trick-or-treaters including some that could be a safety threat.
Consider buying light-colored or bright garments that are visible to motorists. If the costume is dark, apply some reflective tape that will glow in the beam of a car's headlights.

Carefully consider the costume's flammability and opt for material that won't easily go up in smoke. If your child wants to be a mummy, don't wrap him in toilet paper, paper towels or gauze. Other fire hazards include big, baggy sleeves, trailing cloaks, and billowing skirts. The Consumer Product Safety Commission recommends purchasing costumes, beards, masks, and wigs that have the "Flame Resistant" label.

The U.S. Consumer Product Safety Council gives these additional tips for a safe Halloween:

Costumes

• When purchasing costumes, masks, beards and wigs, look for flame- resistant fabrics such as nylon or polyester, or look for the label "Flame Resistant." Flame-resistant fabrics will resist burning and should extinguish quickly. To minimize the risk of contact with candles and other fire sources, avoid costumes made with flimsy materials and outfits with big, baggy sleeves or billowing skirts.
• Purchase or make costumes that are light, bright and clearly visible to motorists.
• For greater visibility during dusk and darkness, decorate or trim costumes with reflective tape that will glow in the beam of a car's headlights. Bags or sacks also should be light colored or decorated with reflective tape. Reflective tape is usually available in hardware, bicycle and sporting goods stores.
• Children should carry flashlights to see and be seen.
• Costumes should fit well and not drag on the ground to guard against trips and falls.
• Children should wear well-fitting, sturdy shoes. Oversized high heels are not a good idea.
• Tie hats and scarves securely to prevent them from slipping over children's eyes and obstructing vision.
• If your child wears a mask, make sure it fits securely, provides adequate ventilation, and has eye holes large enough to allow full vision.
• Swords, knives and similar costume accessories should be made of soft, flexible material.

Treats

• Warn children not to eat any treats before an adult has examined them carefully for evidence of tampering.
• Carefully examine any toys or novelty items received by trick-or- treaters under three years of age. Do not allow young children to have any items that are small enough to present a choking hazard or that have small parts or components that could separate during use and present a choking hazard.

Decorations

• Keep candles and jack-o'-lanterns away from landings and doorsteps where costumes could brush against the flame.
• Remove obstacles from lawns, steps and porches when expecting trick-or-treaters.
• Indoors, keep candles and jack-o'-lanterns away from curtains, decorations and other combustibles that could be ignited. Do not leave burning candles unattended.
• Indoors or outside, use only lights that have been tested for safety by a recognized testing laboratory. Check each set of lights, new or old, for broken or cracked sockets, frayed or bare wires, or loose connections. Discard damaged sets.
• Don't overload extension cords.

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The Federal Highway Administration will conduct an intensive study into the cause of the growing number of motorcycle crashes and deaths on America's roads. It's the first study of its kind in almost 30 years.

Nearly 5,300 motorcycle riders died in roadway crashes in 2008, representing 14 percent of all deaths, and 96,000 were injured. Between 1997 and 2008, motorcycle fatalities jumped from 2,116 to 5,290 -- a 150 percent increase, according to the Transportation Department's Fatality Analysis Reporting System.

The study was required by a 2005 federal law, the "Safe, Accountable, Flexible, Efficient Transportation Equity Act," and will be conducted along with the Oklahoma State University. Researchers will evaluate data from hundreds of motorcycle crashes to help identify common factors, including road configurations, environmental conditions and rider experience.

The study's focus is on countermeasures that could reduce motorcycle crashes or lessen their harm. The National Highway Traffic Safety Administration conducted a pilot study to develop the protocols for the full-scale causation research. NHTSA conducted the last major motorcycle causation study, which was completed in 1981.

NHTSA said in July it was considering requiring new safety features on motorcycles. The agency plans to decide by next year whether to require anti-lock brakes on motorcycles. An Insurance Institute for Highway Safety study showed that the rate of fatal crashes was 28 percent lower for motorcycles equipped with optional anti-lock brakes than for those same motorcycles without them.

Motorcycle fatalities are on the rise in Colorado, doubling from 45 in 1995 to an all-time high of 90 deaths in 2007, according to the Colorado Department of Transportation (CDOT). In the past five years (2003-2007) in Colorado, 402 riders and passengers have been killed in motorcycle crashes.

Of those riders, the majority (80 percent) were either not wearing a helmet or it was improperly used. The majority (88 percent) were men and 44 percent were age 45 or older. Alcohol was a factor in 35 percent of the fatal crashes.
Most Coloradans, riders and motorists alike, believe one of the single best things one can do to reduce the number of fatalities is to be more aware and take a rider training class. That's why CDOT has launched a new motorcycle safety program, called 'Live to Ride,' to encourage rider education and motorist awareness."

And CDOT also has developed a new motorcycle safety Web site (www.comotorcyclesafety.com) to address rider and motorist safety issues, including riding under the influence, use of proper gear, and tips for motorists.

CDOT's new motorcycle program, MOST, focuses on training as the first step a rider can take to riding safer, and enjoying the ride longer even for those experienced riders who have been riding for years. CDOT has partnered with a number of organizations throughout the state to encourage more riders to take a motorcycle safety-training course offered by MOST-certified trainers. MOST stands for Motorcycle Operator Safety Training, and its mission is to provide high-quality, low-cost motorcycle training to residents and active-duty military personnel. MOST is administered by CDOT and offers courses that prepare motorcyclists of all skill levels to ride safely, have fun and stay alive.

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States are intensifying efforts to reduce traffic fatalities on rural roads to counter a reality of highway safety: More Americans die on lonely country routes than on more congested urban roads. In 2008, 56% of the USA's 37,261 traffic deaths occurred on rural roads, according to the National Highway Traffic Safety Administration. About 23% of the population lives in rural areas.

In every state -- even Massachusetts, which has the lowest percentage of rural fatalities -- there are more rural deaths per 100 million miles traveled than urban fatalities.

A key reason: People drive faster on rural roads, which are not as well-engineered as urban highways, increasing the likelihood of death or severe injury in crashes. Other factors: behavioral differences, including more drunken driving and less use of seat belts in rural areas, and slower delivery of acute medical care. In Montana, the average response time for emergency medical rescue is about 80 minutes, compared with about 15 minutes in Massachusetts. In Colorado for 2008, there were a total of 548 deaths with 296 occurring on rural roads , a rate of 54% for rural roads.

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