In the age of social media, new platforms struggle to dethrone the reigning kings of Twitter, Facebook, and Instagram.  But one application, Vero, has gained traction in its attempt to replace Instagram.  Launched in 2015, Vero touts itself as a “true social” experience where users can share photos, links, music, movies, books, and location check-ins.  Although Vero launched in 2015, it shot to the top of Apple’s App Store (from #566 to #1) and Google Play seemingly overnight and currently boasts nearly three million users.  Its sudden surge in popularity is attributed to a change in Instagram’s algorithm regarding chronological order of posts and Vero’s initial promise that only the first million users would avoid paying a subscription fee (although, at the time of this publication, the application is still free until further notice).

With millions of users joining Vero in one short week, controversy quickly followed.  One of the largest complaints against Vero is its terms and conditions, which many argue as too broad and sweeping.  Specifically, many users refused to join or deleted their accounts after realizing they granted Vero “a limited, royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, translate, distribute, syndicate, publicly perform, publicly display, make derivative works of, or otherwise use your User Content.”  Royalty-free?  Irrevocable?  Sounds scary to the average user.

But if those terms are a concern, we caution you to inspect the terms and conditions of all your social media platforms; they each use similar language.

Every tweet grants Twitter “a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content […]. This license authorizes us to make your Content available to the rest of the world and to let others do the same.”  Don’t be surprised if Facebook itself “likes” the video you posted of your adorable niece, because you granted them “a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook.”  Posted a perfectly filtered photo of your brunch to Instagram?  In addition to giving them envy over your eggs Benedict, you also gave Instagram a “non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content.”

The use of these platforms themselves are an acceptance of their respective contractual terms, and like any contract, it is imperative to understand exactly to what you have agreed.  Ultimately, Vero’s terms and conditions are no broader or narrower than most platforms’ terms and conditions.  There are arguments for and against all social media platforms that go beyond their respective terms and conditions, but if your use is conditional on those terms, consider reevaluating your involvement with any social media platform.

 

48Copyright: nexusplexus / 123RF Stock Photo245026 - dollar banknote ship sinking in clear blue water
48Copyright: nexusplexus / 123RF Stock Photo245026

Loose lips sink ships!

The Texas Fifth Court of Appeals at Dallas recently held that a settlement party’s loose talk about settlement terms violated the confidentiality provision of a settlement agreement and excused the other party from making the remaining settlement payments. Opinion

The case was recently featured in the Texas Lawyer. See Texas Lawyer

In ruling, the Court accepted the argument that the settlement agreement recited that the confidentiality provision was a material term of the contract.

My partner, Brett Myers has written a recent blog post featuring the importance to the Court of the recitation of materiality of the confidentiality term in the settlement agreement in this case.  Blog Post

But, the larger point? In Texas-contracts mean what they say.

If you sign a settlement agreement that states that its terms are confidential-keep your mouth shut!

Copyright: vladimirfloyd / 123RF Stock Photogesture
Copyright: vladimirfloyd / 123RF Stock Photogesture

As most people who know me know, I am a registered pharmacist in addition to being a lawyer. After graduating from the University of Rhode Island College of Pharmacy in December 1992, and passing the Rhode Island pharmacist licensure exam in February 1993, I practiced pharmacy in various settings until graduating SMU’s Dedman School of Law in May 2003.

As part of the continuing education for my pharmacist license, I recently went to a continuing education seminar presented by the Institute for Brain Potential in which Martin M. Antony, PhD was the speaker.

During the presentation, Dr. Antony said that numerous studies point to poor communications by health care professionals as the most common factor leading to malpractice claims.

39054530 - portrait of cheerful female pharmacist chemist woman in pharmacy drugstore
Copyright: kadmy / 123RF Stock Photo

According to Dr. Antony, it is not a mistake that generally leads to a lawsuit; rather, it is poor communication after the mistake. The examples Dr. Antony gave were things such as health care providers avoiding his or her patient’s calls after the mistake because they know the patient is angry, failing to admit the mistake, and failing to say “I am sorry.”

The failure to apologize is an interesting point. Many lawyers advise their clients that in any in any situation, whether it is a car accident or a mistake in a health care setting, not to apologize and not to admit to anything, especially not fault.

While this advice certainly is applicable in many situations. The criminal context immediately comes to mind. But if a verifiable mistake is made in a health care setting, then there may be other strategies to consider.

The purpose of this blog post is not to give legal advice, and certainly is not to come up with a strategy for dealing with a pharmacist, physician or hospital mistake in less than 500 words. Rather, it is to suggest that health care providers should have a plan in place for dealing with mistakes prior to the issue getting to litigation, and to highlight that patient communication may be an integral part of that plan.

logo-colorI have been defending pharmacists against a multitude of claims for my entire thirteen years of law practice.  Many at Fox Rothschild have been doing it much longer.  We can help you come up with a plan for dealing with health care liability claims and/or mistakes.

Communications between an attorney and client are privileged, right?  As iron-clad as we think the attorney-client privilege may be, there are limits.

Ian Meklinsky at Fox Rothschild LLP shared an interesting case with me this morning where a federal judge in New Hampshire ordered the production of the reports prepared by outside counsel following an investigation of  conducted by outside counsel.  The case involved Phillips Exeter Academy and allegations of sexual assault.  Phillips Exeter’s retained outside counsel hired another lawyer to investigate the allegations.  As part of the investigation, the attorney interviewed witnesses, reviewed documents and prepared two reports for Phillips Exeter and its retained outside counsel.  In discovery Phillips Exeter asserted that the results of the investigation were attorney client privileged.

The court ordered production of the reports because the outside counsel’s reports consisted of factual findings acquired from three witnesses interviewed by outside counsel.  According to the court, facts and statements by third parties are not attorney client privileged.

The attorney client privilege only covers communications for the purpose or rendering legal advice.  The court also questioned whether the reports from outside counsel constituted legal advice or whether the reports contained information to assist Phillips Exeter  make a business decision.  The court focused on the character and content of the reports, and concluded that the information in the reports consisted of information to assist Phillips Exeter on whether to discipline a student accused of sexual assault.  According to the court, the information was akin to providing information to help the client make a business decision, and communications to facilitate a business decision are not the same as legal advice.

Finally, it appears that the court was going to require Phillips Exeter to produce the reports no matter what.  The court concluded by stating that even if Phillips Exeter or its retained counsel hired outside counsel to render legal advice, and the information in the reports constituted legal advice, Phillips Exeter waived any claim of attorney client privilege regarding the reports by putting the contents of the reports at issue in the litigation and by sharing portions of the reports with third parties.

Clients regularly hire outside counsel to conduct investigations, assuming that the results of the investigations will be attorney-client privileged.  The implications of the New Hampshire court’s ruling could be huge in any situation where a party attempts to shield the results of an investigation by hiring outside counsel because the court’s distinction between advice to assist the client in making a business decision and rendering legal advice seems hazy and arbitrary.  Additionally, the court’s decision that Phillips Exeter put the contents of the report at issue in the case is problematic in every case where there is an investigation into allegations that end up in litigation.