Nathan selected to Super Lawyers for 3rd straight year

Nathan was again selected as one of Super Lawyers' Rising Stars for 2013 for the third year running. Super Lawyers is a nationwide "rating service of outstanding lawyers from more than 70 practiceareas who have attained a high-degree of peer recognition andprofessional achievement. The selection process is multi-phased andincludes independent research, peer nominations and peer evaluations.

Super Lawyers magazine features the list and profiles of selectedattorneys and is distributed to attorneys in the state or region and theABA-accredited law school libraries. Super Lawyers is also published asa special section in leading city and regional magazines across thecountry."

Nathan P. Chaney

Fox News on insurance cancellations: blame insurance companies, not Obamacare

A recent opinion piece by a Fox News analyst provides some insight into the cancellation of health insurance policies as the Affordable Care Act (a/k/a Obamacare) goes into effect. He shares our view that pre-ACA, health insurers and their CEOs "made money by finding any excuse, any loophole to deny coverage to the sickest and most vulnerable people in our society." He points out that CEO pay at some of these insurers tops $36 million. We previously reported on how many health insurance company executives make more in a day than most Americans do in a year.

The Fox News analyst blames insurance companies for the cancellations, arguing that the insurers were providing inadequate care. He makes several good analogies about how regulation, including regulation of insurance companies under the ACA, make us all safer: 

You should be blaming your insurance company because they have not been providing you with coverage that meets the minimum basic standards for health care.

Let me put it more bluntly: your insurance companies have been taking advantage of you and the Affordable Care Act puts in place consumer protection and tells them to stop abusing people.

The government did not “force” insurance companies to cancel their own substandard policies.The insurance companies chose to do that rather than do what is right and bring the policies up to code. 

This would be like saying the government “forces” chemical companies to dispose of toxic waste safely rather than dumping it in the river. 

Or the government “forces” people to drive with intact windshields and working brake lights.

How dare they “force” drivers to pay money to get those things fixed if they are broken?

If you are rushed to the hospital in an ambulance, the ACA says your insurance company has to pay for the ambulance ride. 

If your son or daughter has a bout with depression or suffers from panic attacks, the ACA says your insurance company needs to pay for their medicine and treatment from a mental health professional.

People should be angry that their insurance companies were not paying for these humane, common sense benefits all along. 

It baffles me that people are directing their anger at the ACA which rights these terrible wrongs.

I think it's safe to safe that Fox News is generally regarded as a pro-business, anti-regulation news outlet. So when Fox News is accusing an industry of profiteering on the backs of ordinary Americans, you know they're doing something wrong.

Arkansas' non-partisan elections taking partisan, anti-citizen turn

We previously reported on the influence of money in supposedly non-partisan judicial elections here. That post focused on a discovery by investigators that State Farm had lied about the amount of funds it contributed to a judicial election in Illinois. State Farm contributed millions of dollars to a judicial candidate that just so happened to cast the deciding vote overturning a $1 billion verdict against the insurance company for secretly using aftermarket parts to repair vehicles.

Turn now to Arkansas. The Arkansas Chamber of Commerce, an arm of the U.S. Chamber that believes "injured people should have limited ability to sue corporations for damages in the court," is getting involved in two appeals court races in Arkansas. Other partisan money (on both sides, mind you) appears to be pouring in. The retired executive director of the Arkansas Judicial Discipline and Disability Commission explains in detail why this is a bad idea.

We've also got a page that explains why monkeying with the right to a jury trial — guaranteed by the 7th Amendment to the U.S. Constitution and by Article 2, § 7 of the Arkansas Constitution — is a bad idea for citizens.  Our current jury system in Arkansas is about local control. Local citizens serve on juries and make decisions about disputes between, most often, their fellow citizens and huge corporations. In many cases, however, corporations already hold an advantage because current rules permit them to hide their involvement.

The courts are the only place where citizens can stand as equals to major corporations. The legal reform sought by the U.S. and Arkansas Chambers of Commerce would further tip the balance of power by limiting the power of our citizens to access the court system. For this reason, we should be suspect of judicial candidates who take action showing they want money from lobbyists, because it's reasonable to believe they'll return the favor by limiting the right to a jury trial.

Lawsuit filed challenging changes to initiative laws

UPDATE 3/5/14: Judge Mary Spencer McGowan declared these new initiative laws unconstitutional. Read more here.

Several nonprofit groups are challenging a new law designed to make it harder to use the petition process to change state law, reports the Arkansas Times. As someone who's helped several groups through this process, and who's spoken with the attorneys involved in the litigation, I expected as much.

The Arkansas Constitution (at Article 5, Section 1) guarantees citizens the right to propose legislative measures, laws, and amendments to the Constitution by using the initiative process. This right is so important that it is "the first power reserved by the people." Article 5, Section 1 also says, "No legislation shall be enacted to restrict, hamper or impair the exercise of the rights herein reserved to the people." Finally, the Arkansas Constitution says "No law shall be passed to prohibit any person or persons from giving or receiving compensation for circulating petitions, nor to prohibit the circulation of petitions, nor in any manner interfering with the freedom of the people in procuring petitions." This is the supreme law of Arkansas unless the people vote, in a referendum election, to change how initiative petition drives work.

Despite this right being reserved to the people, in 2013 the General Assembly passed Act 1413. This Act modified many of the laws concerning how initiatives work. It places restrictions on who can be a canvasser (a person who circulates a petition for signatures by voters); how canvassers can be compensated; and when canvassers have to register with the State. These restrictions on the rights of Arkansans to hire canvassers to assist with initiative campaigns are in direct contravention to the Arkansas Constitution.

Furthermore, the Act also invalidates all signatures on certain petition parts (individual petition pages, usually with 5-20 signature blanks) in the event any voter erroneously enters any information (such as where the voter has moved, but his or her voter registration still shows the old address). This change in law is contrary to both the Arkansas Constitution and years of court cases decided by the Arkansas Supreme Court.

The problem with all these changes (besides being contrary to the Constitution on their face) is that the new laws criminalize quite a bit of canvassing activity. For instance, a volunteer canvasser commits a Class A misdemeanor if he or she copies address information from a doctor's driver's license to the petition form (because, of course, this doctor has bad handwriting and we want his name and address to be legible!) and then the doctor signs it. A Class A misdemeanor can lead to a 1-year jail sentence and a fine up to $2,500. This is an absurd result that creates a "chilling effect" on the willingness of ordinary citizens to participate in the initiative process — the most important right reserved to the people.

I've helped several counties through the initiative process. In most of these cases, the sponsors of the petition helped update the county voter rolls by assisting voters with providing updated information during the canvassing process to the county clerk. In one instance, a county clerk was unsure of when to count certain votes, and I assisted in getting clarification for her in Attorney General Op. 2010-079. Thus, a side effect of the initiative process was the clarification of existing law.

The initiative process allows the people to speak when legislators won't speak for them. According to the Arkansas Secretary of State, initiated acts have been passed creating standards of conduct for politicians; amending worker's compensation laws; allocating tobacco settlement funds; defining marriage as between a man and a woman; prohibiting adoption by unmarried couples; establishing a scholarship lottery; amending liquor laws; and passing term limits for politicians. Our citizens pass initiated acts across the full political spectrum. This new Act by the General Assembly seeks to consolidate power with politicians by discouraging ordinary citizens from participating in what our Arkansas Constitution says is the very most important right — to change the law ourselves.

Picasso vs. patents: Good artists copy, but can great artists steal?

Steve Jobs, Apple's late CEO, loved the Picasso quote: "Good artists copy, but great artists steal." According to Jobs' biography, the famous Apple computer of the early 1980's that came with a mouse and graphics used technology that was actually developed by Xerox. Yet, Jobs became furious when Microsoft quickly adopted the same interface.

New design elements can be patented. For instance, the "pull-to-refresh" gesture was originally developed for an app named Tweetie, a client for the social media application Twitter. It took so long to get the patent, however, that virtually everyone adopted the gesture in other apps. The inventor claims he obtained the patent "for defensive purposes only", which means that he patented the concept not to sue others, but to ensure that someone else couldn't patent the idea and make him stop using it.

It takes the U.S. Patent Office over two years, on average, to examine a patent application after it is filed. Many applicants take advantage of a "provisional" application process that further extends the time out to 3+ years. Think about the user interface for mobile devices and social media sites from three years ago. They'd seem awfully clunky now, wouldn't they?  

Patents are one way to keep others from stealing your ideas down the road, once you've invested time and money in developing a product, but it takes a concentrated effort to keep up with advances in technology. It takes but a simple glance at the business section of the newspaper to see the patent litigation wars between Apple, Samsung, and Google — these tech giants are duking it out using huge patent portfolios. Oftentimes, these cases result in settlements where the parties cross-license patents to one another to the benefit of all concerned.

So, good artists may copy. But whether they can steal depends on how many patents they have, how soon they were issued, and how much the technology has developed (and moved on) between the time the application was filed and when it issued. (Don't forget that when someone gets caught stealing, they usually have to pay restitution — and some patent damages awards are in the billions of dollars!)

Because patents can take so long to develop, I typically recommend that my clients try to envision where their business will be in 5-8 years. If you have a unique product or service, try to figure out what changes and improvements you'd like to make over time, and include those in the patent application. Later patent applications (called continuations) can further develop more general ideas into concrete, patentable inventions that freeze out competitors.

Please let us know if we can help with your patent needs.