Clash of Titans Over Classified Government NDAs: Has the Trump Administration Actually Created and Lost Its Very Own Vietnam War Style Crisis?

June 18, 2020, Shining Law Firm: Yesterday, the US Government finally filed a request for a temporary restraining order against John Bolton and his new tell-all book “The Room Where It Happens.” (See a link to the brief below.) The government’s ex parte application asks D.C. Judge Royce C. Lamberth to stop the publication of Bolton’s entire new book, “The Room Where It Happened.” In his memoir of his Trumpian White House experiences, Bolton apparently reveals more than a few things that the Trump White House probably wishes had never happened.

The key pieces of evidence cited by the Government’a motion are two declarations from NSC Officer Michael Ellis, a very short unclassified declaration and one that is classified and not filed with the court. Ellis apparently took over the review of Bolton’s book after it was reviewed by Ellen Knight, Senior Director for Records Access and Information Security Management Directorate at the NSC. Ms. Knight told Bolton orally that the manuscript was okay on April 27, 2020. However, she did not give final clearance in writing, and the review process was handed off to her senior, Mr. Ellis. The Government admits upfront that Knight believed that the book was free of disclosures, something that is a frankly shocking admission to see this early in a case in black and white.

Obviously, the U.S. Government will bear the burden of establishing the need for the restraining order, showing breach of contract and irreparable harm. Litigators think long and hard before asking for restraining orders at the outset of a contract case, and do so only when they believe that they are going to win easily based on a good deal of evidence. Losing such a motion is always obviously catastrophic to the case. Many civil clients in trade secrets cases ask their lawyers to seek restraining orders. Most experienced civil litigators talk them out of it unless truly devastating secrets are actually at risk and overwhelming evidence can be provided to the court upfront.

As reported in the press, a good deal of the brief is devoted to descriptions of the non-disclosure agreements that were signed by Bolton (See link to the agreements below). Yet these agreements are form agreements that are only a few pages long, and only reference classified information, not private confidential information.

The main weakness of the Government’s brief may be that the evidence provided only summarizes six paragraphs – the Government appears to have provided no details nor any of the allegedly damaging language. Those summaries are only provided in classified declarations, not found in the public court records. (See link to the unclassified Ellis declaration below). There are several other declarations from high level National Security Council officers, all stating that “certain passages” contain confidential information. None of them actually mention anything about the specific passages. Nor does the brief argue that the whole book is tainted. Can the US Government get a court order banning the entire book based on just a few excerpts? In particular, can this order rest when the case is based only on breach of contract and not criminal relief? The government’s lawyers may have confused classified with confidential. The weakness of most non-disclosure agreement is that the employer has failed to succinctly define the information protected, often going to far or not far enough.

Tellingly, the Ex Parte application mentions a famous case known as “the Pentagon Papers” in a single footnote on page 18 of the 37-page brief. New York Times Co. v. United States, 403 U.S. 713 (1971). In the Pentagon Papers case, the U.S. Government famously sought to prevent the New York Times from publishing leaked government documents concerning the Vietnam War. The Pentagon Papers are a massive 47-volume, 7,000 page set of sealed Department of Defense documents. Famously following his conscience, Former Pentagon Aide Daniel Ellsberg leaked those documents to the press believing that the public needed to know why decisions were being made in governing the war. Ellsberg was charged with numerous criminal offenses, but those chargers were dropped when it was revealed that government operatives had broken into his psychiatrists’ office seeking information to discredit him.

The Pentagon Papers opinion of the Supreme Court was issued in only 15 days’ time. The opinion was highly fractured, with a 6-3 holding. Numerous split opinions were issued and its meaning has been debated in thousands of courtrooms since then. Justices Black and Douglas wrote to allow publication:

In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.

New York Times Co. v. United States, 403 U.S. 713, 717 (1971). In its application against Bolton, the Trump Administration’s brief cites this opinion only as something being cited in another case. It fails to discuss any part of the Pentagon Papers case at all, despite the nearly identical factual circumstances.

In 1964, the Supreme Court issued another mammoth opinion which set forth another set of standards governing the freedom of the press from libel. In that case, an elected official from Montgomery, Alabama brought a libel action based on the publication of an advertisement in the New York Times. Those who brought the Petition included no less than the “Committee to Defend Martin Luther King and the Struggle for Freedom in the South” among others. Chief Justice Brennan ruled against the official. Central to Brennan’s reasoning was the following citation from an early case from famed Justice Louis Brandeis:

Those who won our independence believed . . . that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.”

New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

No one will disagree that the spring of 2020 has been a turning point in American culture, society and governance. No one will disagree that Bolton – in perhaps exactly opposite political leanings from Ellsberg — has created his own lightning rod persona. No one will argue that Bolton, unlike Ellsberg, has sought to profit from the timing of his disclosures.

Each week and nearly ever day has provided a view of a world unimagined the day before. As young law students in the late 1980s and 1990s, these opinions seemed dusty and boring, obvious although interesting curiosities. They are front and center again in our discourse, for better or worse. Take a moment to read them again no matter the outcome in U.S. v. Bolton, and remember their concepts, beliefs and how democracy can work for all.

Safe Ways Forward for the Entertainment Business: Learn the Rules for the Zoned Approach to Re-entry

Entertainment Shining Law Employment

June 17, 2020: On Friday, SAG-AFTRA released an epic document called the “Safe Way Forward” or the “White Paper” whose implications will change the way the entertainment industry works. It has been negotiation in an absolutely incredible amount of time. This document bringing together an astounding level of cooperation between unions, studies and the entire entertainment industry.

Entertainment professionals truly must read this before going back on the set. Some of the massive changes include the create different “zones” on sets, requires PPE in different areas, creates a new health and safety department and staff and extremely stringent cleaning requirements. Visitors are banned. Reception areas placed outside the set and offices — it will be a disinfection area for equipment, etc. Scripts need to be provided in advance to allow for planning. Testing is mandated with different levels of different zones.

The focus of the rules is to stagger personnel for safety. Covid plans need to be prepared in advance.

In addition to the “White Paper”, production crews need to be mindful of a host of brand new requirements and laws. These include Los Angeles County’s separate requirements under “Appendix J” to their “Safer at Home” plan. They also include massive new requirements under the COVID-era emergency packages such as the CARES Act, the “Families First” act, OSHA and CPC guidelines.

It will be important for production crews to work with health professionals and experienced lawyers to work their way through these protocols for the safety of the industry. There is a lot of enthusiasm for the creative community to get back to work. Call the Shining Law Firm to get a free consultation on how you can ensure your business is safe and moving forward.

Will Federal Judges Order You to Take Off Your Mask – The Central District Grapples with New Changes

The Central District of California is one of the biggest locations for intellectual property disputes in the country. However, it is also one of the busiest federal criminal courts at the same time. Under the U.S. Constitution, defendants have a right to “confront” witnesses against them — this means to see them in the eyes and cross examine their truthfulness. It is one of the oldest rights in our Constitution and in our justice system developed over centuries.

Changes in court procedure have been blisteringly fast over the past two months. Today Chief Judge Cormac Carney and Judge Michael Fitzgerald gave an informal webinar updating the federal bar. The presenters noted almost casually that there is a dispute among the judges as to who should wear masks when the court reopens for jury trials.

Apparently, some federal judges now believe that masks are inappropriate in connection with constitutional rights. Other judges believe the exact opposition — societal duties of safety are owed to all citizens. Many judges will be provided with plexiglass barriers for jurors or court staff — these things remain in flux. Federal judges will eventually be facing these issues and grappling with them in the same way as businesses, schools and institutions. However, they will be deciding them eventually in terms of the freedom of defendants and parties to lawsuits, in addition to their own personal safety.

The court has set up phases for re-entry into normalcy. Each federal court may have separate rules. Judge Carney noted that this will all take time. Phase II starts on June 22, 2020, but the timelines for Phases III (jury trials) and Phase IV (regular operation) are not even on the horizon.

Attached are the Shining Law Firm’s quick notes on this casual presentation. These changes — some big, some tiny – will have ripple effects on our society as we go forward.

Copyright Office Guidance on Digital Learning, First Sale and Fair Use

There is perhaps no legal issue that is more “front of mind” and also more obtuse that whether or not a teacher can broadcast or publish a textbook or other copyrighted article over their distance learning technology. On May 15, 2020, the Copyright Office in Washington, DC issued a 22-page letter (Click here to read a copy: 20200515-senudall-response-national-emergency-library ) which addresses these issues — the sheer length of the document tells you that this is not a topic for the faint of heart, or even a non-lawyer.

Importantly, the Office points out the application of the 2002 Technology, Education, and Copyright Harmonization Act (“TEACH”) act which explicitly allows the use of copyrighted materials when used for distance learning”

“pursuant to the TEACH Act, if a school district meets the requirements, an elementary school teacher may display a picture book heis reading in a video to be viewed by all students in his class because it is typical for elementary school teachers in live classroom settings to display all pages of a picture book. Likewise, a university professor may digitally display limited movie clips to illustrate a particular concept relating to a course, just as she would do in a live setting,if the university meets the requirements of the TEACH Act.”

(See Pages 6-7 of the Guidance.) Of course, those “requirements” are not so simple for laypersons to easily understand.   Those requirements also are subject to judicial evaluation, or evaluation by a jury.  (See (Los Angeles Times, April 1, 2020, Appeals Court Rules for Choir Teacher)

The main purpose of this lengthy letter was to chide the Internet Archive for failing to contact copyright owners before releasing thousands of documents in the “National Emergency Library”.   The Copyright Office seems to approve how the Internet Archive is stepping back from the massive release of material.  While it fails to give a simple roadmap to educators for going forward, but it does give many examples of cases and expert thinking as to what can and cannot be done.

If you are an educator and you are uncertain as to whether or not your online materials meet the requirements, contact the Shining Law Firm so we can walk you through the elements needed to comply.

Los Angeles Courts Closed Effective 3/17/2020 for Covid-19 Protection

The Presiding Judge of the largest court system in the United States just released the attached order.  It is completely unprecedented, extending statutes of limitation, continuing trial dates and appearances but allowing many emergency services to proceed.  Attorneys will be parsing this over clearly, but the courts are literally closed on March 16-19, 2020 as if there is a court holiday.  From March 20 through April 16, 2020, “all courtrooms will be closed for judicial business” except for time-sensitive, essential functions such as family law TROs, Probate ex partes, Search Warrants and Arraignments.  Contact your attorney or the courtroom immediately to learn exactly how this will effect you as a litigant.


What is A Life Story Really Worth?

One of the first rules of scriptwriting is to write about your own experiences.  One of the second rules of scriptwriting is to ask whether or not anyone would be interested in your own experiences.  For some people, the third question is really what is the story of my life worth?

Famous people have had a spotted record protecting their own likenesses from being stolen by movie makers (or as some might say, ‘fictionalized’).  “Hustlers”, the new movie starring Jennifer Lopez, unabashedly tells the story of Samantha Barbash, a real-life convicted hustler who ran a ring of female hustlers druggind and robbing rich men in Las Vegas.  Barbash claims that she was offered only $6000.00 for her life story, which she turned down as offensive.  Now that the movie has grossed over $150,000,000, she has brought suit against the movie producers SFX who say that they are entitled to use famous people’s lives and fictionalize them.

If Barbash had brought her lawsuit in California, she could relied on California’s broad “right of publicity” (C.C. Sec. 3344)   This law was created after a California court refused to give the family of Bela Lugosi, the famed movie vampire, rights in his famous persona (“I want to drink your blood”…) after his death in the 1970s.  These laws date back many decades, but have only been formalized in recent years.  New York and many other states now finally have similar laws to California — New York’s was passed in only in 2000 ( (NY CVR § 50)

But even then the law may not be so good for Barbash.  In 1992, Wheel of Fortune spinner Vanna White’s sued Samsung for using a robot cartoon character in one of its ads.  The cartoon was obviously designed to evoke Vanna’s internationally famed image as a glamorous model.  The cartoon character had a blond flipped wig, jewelery and a fashion gown standing next to an upright roulette-type wheel.  However, this wasn’t enough.  The Ninth Circuit didn’t care how much the cartoon looked like Vanna — it felt that no person could have reasonably believed that the cartoon meant that Vanna was endorsing Samsung products.   In short, the law wouldn’t stretch far enough to cover someone’s likeness.

In other cases, famed actress Olivia de Havilland, the man whose life was the basis of The Hurt Locker and the man whose life was the basis for the Wolf of Wall Street have all lost claims like those Barbash is making.

The moral of the story?  Get your story out there first.  Write your life down and file it as a movie treatment with the Writers Guild of America.   It will be a tough battle, and there is a good deal of law against you.  So make it interesting and get to work!  If you need help in working through these issues and protecting your rights, call the Shining Law Firm right away to get started.

Background reading:

About Us

The Shining Law Firm and Carolin K. Shining provide high quality, big firm service with individual attention.  Ms. Shining has been a registered patent attorney since 1990, and has worked with both Fortune 500 companies, solo inventors and everything in between.  With a biochemistry background and U.S. Patent Registration No. 35098, she has long excelled in representing individual inventors and high tech companies.  Read more about her at

2020 Legal Battlegrounds: Fights are Brewing on AB 5 and CA Contractors

Attorneys across California are debating the constitutionality of “AB 5”, a statute designed to radically change what happens to California companies who employ independent contractors.  The implications of the law, now found at California Labor Code Section 2750.3 et seq.) are massive:  companies who employ independent contractors in many sectors may be required to give those contractors in essence the benefits of regular employees.  These changes are designed to force employers to hire persons as regular employees.  Numerous exemptions are contained in the law, mostly adopted as truly last-minute midnight legislative changes.

Several majority industry groups who requested exemptions had those requested denied — this famously included “gig economy” ride-sharing companies such as Uber and Lyft.  Calling themselves “app-based platforms”, Uber and Lyft have thrown the constitutional book at AB 5 in Olson et al. v. State of California, Central District of California Case No. 2:19-cv-10956 (December 31, 2019).  Uber and Postmates challenge this law under the Equal Protection Clause (page 35), Due Process (right to pursue a chosen occupation), the 9th Amendment (the enumeration clause, a largely forgotten part of the Constitution alleging protection of undefined “certain rights” and the “Contracts Clause” (state laws cannot infringe on private contracts).

The history of AB 5 is documented blow-by-blow in the Complaint – read the entire complaint here:

20191230 uber complaint copy courtesy of shining law firm document

One group that was denied an exemption at the last moment was surprisingly journalist and free-lance reporters.  Widely believing that they would get an exemption, this discussion was largely ignored in the print media before AB 5 was adopted.  Through the American Society of Journalists and Authors, Inc. et al. v. Becerra,  Central District of California Case No. 2:19-cv-10645 (Dec. 17, 2019), journalists also alleged numerous constitutional violations:

20191217 journalist ab5 complaint courtesy of shining law firm

So what is next for businesses?  The journalists’ lawyers have already moved for a preliminary injunction — something with a very high burden to meet when the stakes are “mere money”.  A hearing on this is not set until March 9, 2020 before the Hon. Philip S. Gutierrez.   Expect a major battle and stay tuned to this website for real factual uploads of the pleadings and the facts.

20191217 journalist ab5 motion for preliminary injunction courtesy of shining law firm

Contractor or employee: Post-Dynamex Confusion Reigns

On Friday, September 18, 2019, the biggest change in employment law in many decades across the country was signed into law by Gov. Gavin Newsom.  With nary a sound in the major news outlets, this law is poised to up-end the job classifications for tens of thousands of average Californians.  At the last minute, fifty industries were given sweeping exemptions, demonstrating who still wields real power in Sacramento in this Democratic super-supermajority legislature.

The key to the new law is the third prong of the new three-part test:  Is the employee working in the same field as their employer?  For example, many lawyers work as “contract” lawyers for law firms, giving them flexibility but also lower salaries.  Likewise, some doctors work on contracts the same way.  Construction outfits also hire contractors — but plumbing companies cannot hire plumbers on

So of course, some of the people who can still use the contract employee, law firms, accountancies, doctors, are no surprise.  Others, such as strippers, Rabbis and fishermen seem odd but won’t impact too many Californians.

One industry group that can still hire “contractors” is a big big surprise — building construction firms are exempt.   More and more construction firms are using laborers as contract employees, pushing down workers compensation liablities to the lowest common denominator and the persons who can afford it the least.

Sadly, the court in Dynamex was hailed as providing a simple, three-step test to clarify and strengthen workers’ rights.  This new bill remains full of gaps, loopholes and weaknesses.  Both sides will claim victory, and the big “gig economy” players have been promised that “we’ll still consider a carve out for you also.”

For federal cases and the majority of the country, the twenty-party IRS test still remains — but with 50 carve-outs and new vague language, how much has really changed remains to be seen? Some people may see massive changes, corporate restructuring, new hires and job reclassifications.  Some people may have to sue to get the Dynamex test applied to them.  Uber and Lyft have been promised continued potential carve-outs.  So while everyone in Sacramento pats themselves on the back, AB 5 is certain to do one thing:  create decades of litigation over the same old same old: are you a contractor or an employee?

Formal handshake deals are the new contracts?

A recent article in the Harvard Business Review actually argues that handshake deals should replace written contracts.   “Relational contracts that rely on parties’ making choices in their mutual self-interest are nothing new, of course. The benefits of informal “handshake” deals have been studied and promoted over the decades…”  HBR admits that the basic contract is not going away:  “Some relationships, such as those involving the purchase of commodity products and services, are truly transactional and only need traditional contracts.”  But some of these new ideas may be useful as small businesses work on building networks and relationships in today’s challenging marketplaces. If you are a small business person looking for cost-effective legal advice on contracts and negotiations, call Carolin Shining for unique approaches and one-on-one service: