Law Offices of William Cafaro

Law office of Bonnie Lawston

Web Perseverance - Web Development, Internet Marketing, SEO, Graphic Design

Criminal Defense Lawyer NYC

Law office of Bonnie Lawston

Law Offices of William Cafaro

What are the Real Issues in the Sofia Vergara Embryo Lawsuits

How Have the Cases in Other States Been Coming Out? What are the Rules?

Sofia Vergara, one of the most beautiful women in the world and one of the highest paid women in television[1] was engaged until 2014 to Nick Loeb, the son of a diplomat and philanthropist, great grand-nephew of former New York governor and banking heir Herbert H. Lehman, and cousin of the heir to the Seagram fortune, who admitted that even she thought he was a “dorky guy”.

 

 

 

 

 

They wanted children but she wanted a surrogate to carry the pregnancy to term, so they went through IVF treatment. The first time, one implantation failed, and the surrogate miscarried. They went for a second egg retrieval, resulting in two female embryos,[2] which were cryogenically frozen. After they split up, he wanted the embryos to implant in a surrogate mother, which she refused to allow. Each time she had undergone IVF treatment, they both signed consent forms at the IVF facility which did not specifically say what would happen if they separated, which is required by California law,[3]  but they did say that they would only be implanted if both of them agreed to it.

Why Drag This Through the Courts?

Her lawyers say that Loeb is just trying to keep himself in the public eye, that he had always used her celebrity status to promote his hot dog condiment business[4], and that if he really wanted a family, he should hire a surrogate and an egg donor without unnecessary legal battles. He says that his position is not just about saving lives; it is also about being pro-parent. However, these cases are not really right to life cases, because the chance of successful implantation of viable frozen embryos is a subject of scientific debate, but from a 40 year old egg donor, probably somewhere in the range of around 30% to 40%[5]

Loeb’s Two Previous Girlfriends Who Had Abortions

In the second case Loeb brought against Vergara in California, her lawyers asked to question two previous girlfriends who had aborted pregnancies fathered by Loeb, to try to show that his pro-parent beliefs were not as sincere as he claimed. Vergara won on this issue, and the California judge ordered Loeb to tell her the names of the two prior girlfriends, and also ruled that Vergara’s lawyers could question them under oath. Loeb publicly said he would go to jail before he revealed their names, and apparently abandoned the lawsuit rather so he would not have to obey the judge’s order.

A woman is entitled to bring a pregnancy to term even if the man objects. Shouldn’t a man who is willing to take on all parental responsibilities be similarly entitled to bring his embryos to term even if the woman objects? 

What are the Rules?

There is no federal law in this area, so it depends on what state you live in. Most courts will generally follow the directives on the forms the couple signed at the IVF center, however, the result might have been different if Loeb and Vergara had been married, because they lived in California, a community property state. Embryos clearly are viewed as property in New York, and in a New York case[6] very similar to this one, the wife was denied the right to thaw the embryos over the husband’s objection, based upon the form she had signed. Read More

Sofia Vergara Gets Cajun Justice

Louisiana law, unlike any other state, has a specific law giving embryos rights as legal persons[9], and the judges will resolve any disputes between the “parents” about the embryo in the best interests of the embryo[10], in the same way that judges in all other states decide custody cases in the best interests of the child. For this reason, Loeb filed  another lawsuit in the names of the embryos only, against Vergara in Lousiana state court, and Vergara transferred[11]  the case to the federal court in Lousiana. “Diversity Jurisdiction” in federal court means that the lawsuit is between citizens of different states, and the amount in dispute is greater than $75,000. No federal judge can decide any case without first finding that there is federal jurisdiction, so to decide this, the judge had to decide if the embryos were citizens, even though they were created in a state that did not give them legal status. First, no one knows if embryos can be “citizens” for federal jurisdictional purposes, and no one, let alone a judge, has ever placed a dollar value on an embryo, so how could a judge possibly fix a value in a court case?  The case also presented constitutional questions concerning procreation rights, and whether federal law “preempts” (takes precedence over) the Louisiana state laws giving rights to embryos from artificial insemination, because under Louisiana law embryos cannot be intentionally destroyed. The judge observed that all these difficult questions could be avoided by first deciding whether Sofia Vergara could be sued in the state of Louisiana at all in the first place. Any court, state or federal, needs some specific basis to make anyone answer and defend a lawsuit in any state where they don’t live or have a business[12]. This rule is called personal jurisdiction, and this is what gives the court legal power over anyone who is being sued. In this case, Sofia Vergara lived in California and had the IVF treatment which created the embryos there, she had never lived in Louisiana, she had only made a movie there and rented a house there for a few months. Even if she had, as Loeb claimed, had some conversations with him about the embryos there and that they had planned to live there in the future, that would not be enough to force her to defend any lawsuit in Louisiana. Read More

How Have the Cases in Other States Been Coming Out?

At the end of the day, in almost all of the reported cases in the country, judges have honored the choices the couple made on the forms they signed at the in vitro facilities at the time, but the courts are very reluctant to make someone become a parent against their wishes. The Supreme Judicial Court of Massachusetts has said that even if the signed forms required one of the parties to become a parent against their will, this could not be enforced because it would be against public policy[14].Read More

The result might have been different in the Sofia Vergara case if Loeb had been able show that it was biologically impossible for him to father another child, but we will never know.

[1] Besides earning $325,000 per episode for “Modern Family”, she does extremely lucrative endorsements. A selfie posted on her social media account was used without her permission in an advertisement, which prompted a $15M lawsuit, alleging that this is what she normally gets for an endorsement. While the amount of the settlement against Venus Legacy in March, 2017 was confidential, it was certainly a respectable sum.

[2] “Embryo” is a technical misnomer in these cases. These are actually fertilized ovum, which are more accurately referred to as pre-embryos which can develop into embryos if successfully implanted in a female uterus.

More Footnotes, Read More

Milo Yiannopoulos Sues Simon & Schuster – Bet They Wish They Had a Morals Clause, but What’s a Morals Clause?

by  | Jul 11, 2017 |

According to the lawsuit he filed on Friday, July 7, 2017, Simon & Schuster refused to publish his most recent book, Dangerous, because of allegations that public statements he made condoned pedophilia[1].

 What’s a “Morals Clause”

It’s a provision routinely included in contracts for celebrity endorsers, professional athletes, newscasters, TV actors, and various other people whose effectiveness and/or salability depends upon the public’s perception of them. Going back to 1972, Marilyn Chambers, the fresh faced young mother holding the infant on the Ivory Snow detergent box  starred in Behind the Green Door, which was considered extremely hard core pornography at that time. This was obviously at odds with the pure and wholesome image Proctor & Gamble wanted the public to associate with its product. Typically, morals clauses allow the company to cancel the contract if the individual is charged with or convicted of a serious crime or conduct which is immoral or widely viewed by the public as reprehensible.Can’t Simon & Schuster Refuse to Publish any Book? Read More

 What Will the Main Issues be in Milo’s Case?

From Fatty Arbuckle to The House Un-American Activities Committee to Charlie Sheen to Brian Williams – How did Morals Clauses Come About and How Have They Been Used[3]?

Image result for fatty arbuckle

Morals Clauses started in 1921 when Roscoe “Fatty” Arbuckle, a very famous silent film star at that time, was arrested and charged with the rape and murder of a young starlet who had been found in his hotel room.  Although the evidence against him was slim and he was found not guilty of all charges, the sensational “yellow journalism” of the day convicted him in the court of public opinion. Widespread outrage at “Hollywood Immorality” prompted the entertainment industry to use Morals Clauses in every contract to protect them from having to continue to pay stars who stepped in scandal, as well as to appease their audiences.

Thirty years later, the House Un-American Activities Committee, at the height of the Cold War in the early 1950s, investigated alleged Communist infiltration of the motion picture industry.

Related image

The next big splash in this area was Charlie Sheen’s contract for Two and a Half Men, which had a very weak Morals Clause,requiring commision of a felony offense involving moral turpitude. This put Warner Bros. TV on shaky legal ground for firing him despite his clearly outrageous behavior, and they had to fall back on the argument that his cocaine use impaired his ability to adequately perform. Sheen sued for $100M, and although the settlement was confidential, it was clearly substantial.

Fast forward to 2015, when Brian Williams, who had just signed a $10M contract with NBC, publicly gave several variations of a false account of a March 2003 helicopter ride during the U.S. invasion of Iraq which he was forced to take back and apologize. His credibility with the public plummeted, and NBC, which could clearly have terminated his contract based on an ironclad Morals Clause in his contract, decided on a six month unpaid suspension instead.

The long and short of this is that every contract is different, and the outcome in each situation is, and will continue to be, determined based on the wording the parties agreed upon when they sat down with their lawyers and made their deal.

[1] As everyone who follows Milo Yiannopoulos knows, he is openly gay, vigorously denies that he has ever advocated pedophilia, and claims that his widely publicized remarks which led to his departure from Breitbart News referred favorably to a relationship he had with a man who was 29 when he was 17. 16 was the legal age of consent in the UK, where this took place. Milo also posted a statement on his Facebook page (which is attached to his complaint as Ex. “I”) denying that his public remarks ever condoned pedophilia. Whether Milo’s remarks expressed approval of pedophilia or not is a question which is not addressed here; it is merely assumed that Milo made public statements which were very heavily criticized.

[2] The NFL contract, for example, allows the club to terminate the player, “if, at any time, in the sole judgment of the Club,….[the] player has engaged in personal conduct reasonably judged by the Club to adversely affect or reflect on the Club.” , http://static.nfl.com/static/content/public/image/cba/nfl-cba-2006-2012.pdf ¶ 11, p. 252.

[3] For an excellent history of the law in this area, see, Morals Clauses, Past, Present and Future, Caroline Epstein, NYU Journal of Intellectual Property and Entertainment Law, Vol. 5, No. 1.

[4] Twentieth Century-Fox Film Corp. v. Lardner, 216 F.2d 844, (9th Cir. 1954); Scott v. RKO Radio Pictures, Inc., 240 F.2d 87, (9th Cir. 1957)

Freelance Isn’t Free

Author: William Cafaro

Important New Rights for Freelancers in NYC

  “Freelance Isn’t Free” Bill Passes in NYC, What Does it Mean?

New York City Passes Freelancer Wage Protection Law

The new law covers individuals who provide services, and is only available in the City of New York:

New York City | Queens | Brooklyn | The Bronx

What Does This New Law Mean for Me, as a Freelancer?

It basically gives you the same state law labor rights as employees have. This is HUGE.  It gives you the right to double damages  – $2,000.00 for every $1,000.00 of the agreed price of the work.

If you win, the company will have to pay you a 100% penalty, plus your attorneys’ fees and your court costs.

Why will it be different now?

What if the company never gave me anything in writing saying how much I’d be paid?

What Practical Difference Will this new “ Freelance Isn’t Free” law mean to me?

Read More

Freelance Isn't Free NYC Bill

Now, a lot of companies just aren’t paying you because you have so few legal rights, and they’re just not worried about you suing them. Until this law was passed, most lawyers were not willing to do these cases for a percentage of what they got for you at the end (this is called a “contingency fee”, explained above); they wanted you to pay their legal bills by the hour up front, which you couldn’t afford to do. THIS CHANGES ALL THAT.

If I was hired to do the job by a single individual, as opposed to a company, will this law apply?

Yes, it will.

I consider myself a Freelancer, but how do I know if I can use this new law?

When is this law going into effect?

On May 16, 2017. It will only apply to contracts entered into on or after the effective date

“If you are one of the bottom 99% of the workforce and find yourself at the mercy of the 1%, who own and manage businesses, it is our law firm’s mission to represent you and protect your legal rights. We understand how easy it is for the powerful to take advantage of the little guy. When you need legal help to resolve a troubling employment issue, we are here for you. We are experienced trial lawyers who take pride in fighting for our clients.”  ~ Bill Cafaro

Where can I find the new law?

New York City Passes Freelancer Wage Protection Law: “Freelance Isn’t Free” Here’s the link

 

Leeds Brown Law, P.C., Represents Nassau County Police Officer

leeds brown law

PARTNER RICK OSTROVE WINS ON BEHALF OF POLICE OFFER

Nassau County Police Officer Wins After 6 Years of Desk Duty

Leeds Brown Law, P.C., representing a Nassau County police officer, received an award of $129,500 for emotional damages and a loss of overtime in a civil discrimination lawsuit. As reported by Newsday, the officer’s rights under the Americans with Disabilities Act were violated, resulting in discrimination and limited duties. Partner Rick Ostrove explained, “He is excited to get back to work as a full-duty police officer and help protect the public.” Full Article

Author of Newsday article: Nicole.fuller@newsday.com