Nathan selected to Super Lawyers for 4th year straight

Nathan was selected as one of Super Lawyers’ Rising Stars for 2014. You can view the 2014 Mid_South Super Lawyers Magazine online here.

Super Lawyers is a nationwide “rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and  professional achievement. The selection process is multi-phased and  includes independent research, peer nominations and peer evaluations.

Nathan P. Chaney

Super Lawyers magazine features the list and profiles of selected attorneys and is distributed to attorneys in the state or region and the ABA-accredited law school libraries. Super Lawyers is also published as a special section in leading city and regional magazines across the country.”

Perception versus Reality: the jury can't hear everything

I caught a lucky break last weekend when one of my college roommates at the SAE house put his Razorback tickets up on Facebook. He has an infant and won't be making many games this year. We planned on going to Fayetteville for the game, so I stopped in Little Rock and got his tickets. To the delight of my son and I, the tickets were front row south end zone seats. Great seats for a great game. The Hogs capped off a dominating performance against Northern Illinois with a touchdown sprint by Korliss Marshall late in the 4th quarter. This happened right in front of our seats, and my whole family could have reached out and touched the players. The photo is a screen grab from the ESPNU coverage of the game.

My oldest son's perception of what it means to go to a Razorback game is forever changed. At 6, he'll probably always remember that moment on the front row. (My earliest memory of a game is from the age of about 4, most of the way up the grandstands. I was terrified of Big Red, the mascot.) In reality, it is rare to have those types of seats, even for big boosters. As I said before, I simply got lucky. (So did my friend — they volunteered to change seats when the south end zone seats were installed.)

Perception versus reality has its place in the courtroom, and juror feedback is a great thing for identifying the difference between the two. I've tried cases in three states in both federal and state court. Every judge does something a little differently about talking to the jury. Many times, juror feedback is limited by the Court. For example, in most federal courts, the judge won't permit any contact with jurors until after any appeals are finalized, and then only if the juror puts his or her name on a list. In state court in Arkansas and Texas, the custom is for the judge to tell jurors that want to discuss the case with the attorneys to leave through the courtroom; other jurors go out a different door.

After unfavorable jury verdicts (which any plaintiff's lawyer who tries many cases have had), jurors almost always report that they would have liked to see more information — more medical records, more tax returns, any information about car or health insurance, more witnesses from different parts of life. Courts have limited resources, and so attorneys must make choices about what evidence to present to the jury within a limited time frame. Attorneys for injury victims also can't present any evidence relating to insurance, which is a law we believe should be changed. This is the case even when the defendant has insurance to pay any judgment, or the medical bills actually paid by health insurance are far less than the rate charged by a hospital.

So the reality is that people have many more medical records and witnesses than could ever be presented to tell a complete story of a life-changing event. Court rules also limit what types of evidence can be shown to the jury. So, the jury's perception is shaped by constraints on time and by laws created by lobbyists to limit references to insurance and other matters that almost always interest the jury.

If you were on a jury, how would you handle the difference between perception and reality? How would you want an attorney to explain the difference to you?

Nathan Publishes Article in the Arkansas Law Review

The summer 2014 edition of the Arkansas Law Review is out, and I wrote one of the feature articles. The article is about the Arkansas Deceptive Trade Practices Act (ADTPA). The ADTPA permits any citizen who has been the victim of a deceptive trade practice to bring suit against the bad actor. The act is very broad and consumer-friendly. We most often see it when the Arkansas Attorney General uses it to stop wrongful practices, like very high interest check-cashers.

The Act contains an exemption for conduct "authorized" by federal and state laws and regulations. Some Arkansas courts apply the exemption as written. For example, when the Environmental Protection Agency approved an estimated mileage sticker for the Toyota Prius, an ADPTA claim against Toyota for misleading mileage estimates failed. The conduct was "authorized" by the EPA. When the ADTPA exemption is limited like this, it is known as an application of the "specific conduct" rule.

Some Arkansas courts have interpreted this to mean that all "regulated" conduct is exempt from the ADPTA. For example, some insurance companies argue that their claims practices are regulated and any ADTPA suit against them must fail, even though the insurance code defines certain insurance practices as deceptive (like failing to give you a reason for denying your claim). Primarily, the federal district courts for the Eastern District of Arkansas apply the rule this way; it is known as the "general activity" rule.

The Arkansas Supreme Court hasn't specifically ruled on this exemption. However, many courts around the country have ruled on similar exemptions.  My article surveys 50 other states, and concludes that most states having a rule similar to ours apply the specific conduct rule.

The full citation for the article is: Nathan P. Chaney, The Arkansas Deceptive Trade Practices Act: The Arkansas Supreme Court Should Adopt the Specific-Conduct Rule, 67 Ark. L. Rev. 299 (2014). I'll post a link when it becomes available.

Dateline investigation of "paper reviews" used to deny claims

Check out this NBC Dateline series (there are 4 parts), which describes how State Farm and other insurance companies use a "paper review" process to deny claims. Non-doctors write reports that are signed by doctors, oftentimes without review of records by the actual doctor. Doctors sign 30-50 reports in "autograph sessions" without reviewing records, and the reports were often changed after being signed by doctors. The reports were written in a way slanted in favor of the insurance companies to downplay injuries, limit claim payments, and cut care. 

Part 2 of 4:

Part 3 of 4:

Part 4 of 4:

Trademark Office cancels trademarks for NFL's Washington franchise

The Washington Redskins are no more, at least as far as the U.S. Patent & Trademark Office is concerned. In a second decision issued by the Trademark Trial & Appeals Board (TTAB), the Board declared that the trademark registrations for the Redskins franchise should be canceled because all six marks are "disparaging" to Native Americans. This is yet another step in a long legal process. The TTAB's first decision to cancel the registrations was way back in 1999, which is long enough ago (barely) that I studied it in law school. The 1999 decision was overturned on a technicality in the federal court system.  

The decision is important to the NFL and its Washington franchise for several reasons. First, a trademark registration over 5 years old carries certain presumptions, including that it is valid, protectable, and insulated from most legal challenges. A registration punches the trademark owner's ticket into federal court anywhere in the country the owner needs to shut down someone unlawfully using the mark (especially for trademarks on a nationwide product like the NFL). A trademark registration also prevents any other person from getting a confusingly similar trademark at the Trademark Office. And, the trademark owner gets to use the ® symbol on its products.

However, in order to get a trademark registration, the trademark owner must comply with certain legal requirements. For instance, you can't get a trademark on the following things:

• anything immoral, deceptive, scandalous, disparaging (e.g., swear words, the Redskins name);
• wrongfully suggests an association with a person, groups, beliefs, or national symbols;
• contains a flag of the U.S., a state, or a foreign country;
• wrongfully suggests a geographic association with a product (e.g., Champagne is from France);
• contains the name, portrait, or signature of a living person or a dead president while his widow is still living;
• anything descriptive, mis-descriptive, or generic about a product or service; and
• anything likely to be confused with a previously-registered trademark that is still active.

As you can see, there are many pitfalls for the unwary in applying for trademark registrations.

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Now that the Redskins registrations have been canceled, the team can still elect to use the Redskins name, and it will continue to have common law trademark rights to the names. Trademark rights arise out of use, not registration, and simply by using a mark in commerce one acquires common law trademark rights. However, if the team or the NFL wants to enforce the Redskins common law trademarks, it faces additional hurdles in doing so — like proving it owns a valid trademark registration. That won't be terribly difficult for the NFL, but that type of burden is more difficult for a smaller business on a tight budget with a shorter period of use.

Trademarks are your brand, your public identity. Brands need to be well planned and protected. I've been a trademark lawyer for a decade. I've helped scores of clients vet hundreds of potential brand names, and I've obtained many a trademark registration. If you need help protecting your brand, please give me a call.