Category: Uncategorized

By Jan Mulligan

The word “meta” is Greek for beyond. With historic roots in science fiction, meta was first defined in a 1999 book called Snow Crash by Neal Stephenson as a virtual universe controlled and owned by a “global information monopoly that users can access via personal VR goggles.” Still now in its infancy, there is currently no truly such united place for “the” metaverse to be experienced. Numerous virtual worlds do exist and technology is beginning to bring together virtual content which never before existed and with it, it is creating legal challenges never before imagined.

The goal is for the metaverse to embody the evolution of the Internet into “a single, universal and immersive virtual world that is facilitated by the use of virtual reality (VR) and augmented reality (AR) head sets.”i Interfaces can also include body armor (hapatic feedback suits) and nunchucks which will help one feel totally immersed in the experience.

The metaverse promises to bring the virtual world to life! In a proprietary virtual 3D space, a person will take the form of an avatar and move freely to do much of what one does in the “real” world including shop, take classes, attend meetings and concerts, exercise, compete in sporting events, own assets and make creative and financial investments that the individual can own, control and sell.

Metaverse is big business. Corporations seeks to maximize the monetary transactions for the hugh tech companies. For example, Facebook renamed its parent corporation “Meta” and committed US$180 billion dollars to develop the metaverse. Mark Zuckerberg said it is a “reasonable construct” for the metaverse to be a time, not a place. Some have pondered if the metaverse is a moment when our lives will become more digital than physical. Zuckerberg opined that this will likely happen once the masses need the metaverse to do their jobs.ii Not to be locked out of the market, Microsoft acquired Activision for US$69 billion. According to Satya Nadella, chairman and CEO at Microsoft, the purchase of Activision “provide[s] building blocks for the metaverse….”Gaming… will play a key role in the development of metaverse platforms.”iii

Corporate tech giants are not the only ones staking out turf in the metaverse. A different, decentralized crypto metaverse is also marching towards the future. Companies using this business model include Decentraland and Sandbox. Key features of such systems have the following characteristics: The ownership of the metaverse is shared by its users through the implementation of blockchain technology. Decentralized autonomous organizations (DAOs) put users in control of the game’s future. These metaverses hope to grow into entire societies with economies and democratic leadership. Nonfungible tokens (NFTs) are digital objects on a blockchain. Because every NFT is unique, tokens are coded to prove ownership of user generated content and NFT assets. These tokens have real-world economic value. Holders of crypto tokens, avatar skins, and digital real estate can trade them.iv

With the power grab for this burgeoning new field accelerating, a critical question is who will regulate this unsettled field in the United States? Will it be government regulators, courts, or corporate self-governance rising to the occasion?

Existing U.S. federal laws likely to play a role include intellectual property, tax, securities/banking, gambling/lottery, currency, antitrust, unfair trade practices, cybersecurity, employment, disabilities act and statutes for the protection of children. One of the problems with these existing laws is that they are inadequate for novel issues raised by the metaverse, such as the scope of the right to use content held by an NFT owner.

New laws are needed, but U.S. regulators are too slow, preferring to take a “wait and see” attitude. Additionally, U.S. law often defers to individual state laws, which are fractured and inconsistent. For example, with no existing body of federal privacy laws, California has become the gold standard in the United States, even though such laws have no force or effect outside this state.

While the metaverse industry may be in its infancy, there is already a growing body of litigation, including:

Hérmes“MetaBirkens”: Cease and desist order filed in U. S. Dist. Ct NYC against artist who made NFT version of Birken bag claiming misappropriation of intellectual property rights.v

Kardashian/EMAX Class Action: Sued in California under state consumer protection laws arising from social media endorsement without disclosure that NFT is a volatile investment product. Suit claims “pump and dump” of NFT causing value to

Tarantino/Miramax: Tarantino minted NFTs from Pulp Fiction screenplay. Film studio sued in California for breach of trademark and copyright arising from 1993 contract reserving both parties’ property rights but silent on NFTs.vii

Jay-Z (Roc-A-Fella Records)/Damon Dash: Intellectual property suit filed in federal court in NYC against record company’s co-founder Dash seeking to enjoin him from auctioning a NFT of Jay-Z’s album cover.viii

Coinbase/Dogecoin Sweepstakes California Class Action: Dogecoin And 78 Other Crypto Tokens are allegedly “unlicensed securities”. The lawsuit seeks to distinguish Crypto Tokens from Bitcoin and Ethereum because of the latter’s decentralized nature. The return of all investors’ money is claimed damages.ix

Coinbase/Dogecoin False Advertising California Class Action: Sweepstakes rules must offer a free form of entry. Class representative claims he wouldn’t have paid to enter the contest if Coinbase had clearly disclosed there was a free way to enter the contest.

Enforcement of any such state and federal laws are hampered by the lack of borders in the Metaverse. Fortunately, a new U.S. Supreme Court decision will make it easier, at least in the short run, for corporate self-governance. With a 5-4 split decision in Netchoice v. Paxton 595 US __ (2022), the Court stayed a Texas law from going into effect which would have prohibited social media companies from banning users over their viewpoints, even if their rhetoric was offensive or erroneous. The Court also refused to enforce a statutory clause which would have required corporations to explain and disclose reasons for any individual to be banned from the website. Unfortunately, this is only a temporary ruling protecting the status quo until the Court publishes its final ruling on the issue of how the first amendment applies to social media. Absent the U.S. Supreme Court stripping corporations from self-governance over participants’ speech, these companies are in a superior position to use technology to police the metaverse.

For example, while beta-testing a Meta product in virtual reality, a female reported her avatar was verbally and sexually harassed with sexual innuendos and other avatars “touched and groped” her avatar while yet other avatars took selfie photos. With a quick response to this problem, Meta used technology to create a two-foot personal boundary around all avatars by default, thus blocking wayward hands from drawing too close. The forcefield style safety mechanism was then rolled out across all Meta platforms, limiting interactions between avatars to fist bumps and high fives.

Another technological solution to help regulate the metaverse is with the use of “smart contracts”. These are programmed digital codes that run on the blockchain, automate operations and ensure that trading and transactions are done according to predetermined rules. They can be programmed to automatically pay royalties, buy and sell NFTs, make donations and much more. Benefits include speed and efficiency, with no paperwork to process. Smart contracts are also hard to hack and cannot be altered. On the downside, their name is misleading because they are not actually legally binding contracts, but rather a set of rules that control the use of specific NFTs. Subsequent purchasers may also be mislead because a smart contract does not necessarily provide the same benefits to them as it did to the original owner.

Crypto tokens are a novel mechanism for corporate governance. Crypto tokens (such as ERC-20) are built into existing blockchains. Some crypto tokens represent tangible assets such as real estate or art, while others represent intangible assets, including governance voting rights on the platform. In decentralized platforms such as Sandbox, crypto tokens can be used as a method of decision making to guide the future direction of varius blockchain projects. While decentralized governance is still evolving, key processes are being standardized and implemented so that protocols can be equitably enforced.

In an attempt to be afforded “extra” protection under existing intellectual property laws, some companies, including Nike, are filing multiple applications seeking U.S. trademark protection for virtual goods. Such applications are on an intent-to-use-basis, so they won’t be finalized until they are in commercial use.

As we dive deeper into the metaverse, it promises to expand and evolve beyond our wildest dreams, and with it so will the novel legal and regulatory issues. Creative and innovative solutions must be found if the metaverse is to meet its full potential.

i Wikipedia,’Brian-Chan-1 Citing O’Brian, Matt; Chan, Kelvin (28 October 2021). “EXPLAINER: What is the metaverse and how will it work?”. ABC News. Associated Press..
ii Podcast Mark in the Metaverse Facebook’s CEO on why the social network is becoming a metaverse company” Newton, Casey July 22, 2021.
iii Microsoft’s metaverse plans are getting clearer with its $68.7 billion Activision acquisition, Huddleston, Tom January 21, 2021
iv Cryptopedia,
v Hermes International v. Mason Rothschild, Case no. 1:2022cv00384 US District Court for the Southern District of New York.
vi Huegerich v. Gentile et. al, et al, Case 2:22-cv-00163, U.S. District Court for the Central District of California
vii Miramax, LLC v. Tarantino Case 2:21-cv-08979-FMO-JC U.S. District Court for the Central District of California
viii Roc-A-Fella Records, Inc. v. Dash 1:2021cv05411, US District Court for the Southern District of New York,
ix Suski v. Marden-Kane, Inc., 2022 WL 103541 (U.S. District Court Northern District of California)


The case of the first ransomware death has been reported and it raises serious questions. Why were patients still being admitted to Springhill Medical Center in Alabama nearly eight days after computers were disabled on every floor and the nurses’ stations were cut off from key patient monitoring? A wireless tracker used to locate medical staff was also down. Electronic medical records were inaccessible. Yet patients weren’t told about this cyber-crisis and they weren’t given the option to be transferred to another hospital. In fact, for over a week, even laboring women continued to be admitted to this hospital day after day, without any knowledge that the hospital’s ability to function was severely crippled.

Wasn’t it reasonably foreseeable that computer outages from a cyberattack could cause health care providers to miss critical readouts on fetal heart monitoring equipment? The very purpose of this monitoring equipment is to alert staff when the unborn child is in severe distress and requires an immediate emergency delivery.

The stage was set for disaster when pregnant Teiranni Kidd was admitted to this facility to deliver her baby. Unfortunately, the umbilical cord became wrapped around her unborn child’s neck, cutting off the blood flow and oxygen to her brain. Absent a hack, this is the very type of condition that should have triggered alarms on the heart monitor and resulted in an emergency C-section. During the ransom attack, this child’s severe distress apparently slipped through the cracks and no doctor was summoned until it was too late. The next day, a text from the attending obstetrician to the nurse manager questioned why the doctor was never notified of the fetal distress so she could emergently deliver the baby. After an hour-long delay in delivery, the child was born profoundly brain injured, and she died months later.

A lawsuit is pending. The Wall Street Journal reports that in a court filing, the hospital argues that it had no obligation to inform the pregnant Ms. Kidd about the cyberattack and that it was appropriate to continue to admit patients during the hack. Really?

With increasing frequency, cyber-meltdowns are crippling our nation’s hospitals. While this may have been the first reported ransomware death reported, it won’t be the last. Standards must be set as to under what circumstances patients should be informed of a cyberattack, and when the hospital’s census should be reduced until necessary equipment and digital records can be restored. If not now, when? #healthcare #cyber #ransomware


As a result of the Covid-19 Pandemic and subsequent business closures across the country, many business owners and companies are looking to their property insurance policies for relief. Insurance companies are telling them that the losses are not covered.

Business interruption insurance typically helps replace lost revenue, taxes, payroll, relocations costs, loan payments and lease payments when a business is affected by a covered loss. According to the Insurance Information Institute, approximately one-third of U.S. small businesses carry interruption coverage.

Multiple lawsuits have been filed around the country in response to these claim denials.

Some state legislators and lawmakers have sought to ease the burden on small businesses and ensure that they are getting the coverage they paid for. Here in California, 33 Congressional Delegation Members have sent a letter to the California Insurance Commissioner demanding that they “exercise all authority to ensure the insurance companies comply with their business interruption policies. During this crisis, we must do everything possible to mitigate the devastating impact on small businesses due to the coronavirus pandemic.” According to the California Insurance Commissioner Ricardo Lara, the Insurance Commission is “currently working with the insurance industry and business groups to find creative solutions during this unprecedented crisis to make sure our businesses survive, and we need this data to define the size of the problem.”

If you have experienced a business interruption due to Covid19, you may be entitled to assistance.


Hospitals across the country are discussing the possibility of universal do-not resuscitate orders for coronavirus patients. According to an article in the Washington Post, hospitals are facing the reality of balancing the risk to hospital staff posed by resuscitating infected patients and attempting life-saving treatment. According to the article, ‘[s]everal large hospital systems … are looking at guidelines that would allow doctors to override the wishes of the coronavirus patient or family members on a case-by-case basis due to the risk to doctors and nurses, or a shortage of protective equipment, say ethicists and doctors involved in those conversations. But they would stop short of imposing a do-not-resuscitate order on every coronavirus patient.”

These conversations are happening in the context of a larger discussion about the availability of resources such as hospital beds, intensive care unit beds, and ventilators in the face of rising demand as the Covid-19 pandemic continues to spread. Hospitals are also struggling to provide necessary protective equipment to nurses and doctors providing lifesaving care to these critically ill patients. “[A]s cases mount amid a national shortage of personal protective equipment, or PPE, hospitals are beginning to implement emergency measures that will either minimize, modify or completely stop the use of certain procedures on patients with covid-19.”

These news stories have caused many families to consider whether they should have advanced directives in place.

La Crosse, Wisconsin, a town with about 50,000 people, has some interesting lessons we can learn about the benefits of making informed decisions about our end-of-life care. Several decades ago, public health officials and major health organizations began developing a model for end-of-life planning and decision making. By 2009, 96 percent of the residents in La Crosse County had an advanced directive in place. This public policy initiative has benefited families and patients in many ways. Families are relieved from some of the emotional and financial stress that comes along with end-of-life care.

“There is no more gut-wrenching decision to make for family members than when to let go allowing a loved one to end life peacefully. Knowing in advance the patient’s desires can relieve anxiety and grief by ‘following their final wishes.’”

These are important decisions that every individual and family must consider. You have a choice to make informed decisions about the care that you receive and plan in advance.


In response to the COVID-19 crisis, California health officials have extended the special enrollment period for eligible individuals to sign up for health insurance through Covered California. These health insurance plans are subsidized plans for individuals without employer-sponsored health insurance. Several states around the country are re-opening their own health insurance exchanges for a special enrollment period as well.

Although Congress has passed legislation that provides for free coronavirus testing, the subsequent healthcare you might require is expensive. Individuals who do not have health insurance could end up with large medical bills through no fault of their own. A hospitalization lasting several weeks could cost tens of thousands of dollars without insurance according to some studies. Many uninsured individuals will find themselves in a difficult position deciding whether they should seek treatment and risk suffering from the dire financial consequences. Public health officials and experts have expressed concern about the impact of individuals avoiding testing and treatment stating that “uninsured residents who don’t get tested for the novel coronavirus because of the fear of the costs of testing and treatment would represent an ‘extremely weak link in the response chain and would make things much worse.’ ”

According to the US Census Bureau, the number of people in the United States that do not have health insurance is approximately 28 million. If you are uninsured, please contact Covered California to discuss your options.


In light of the recent COVID-19 crisis, California Advocates for Nursing Home Reform (CANHR) is demanding new directives to keep residents safe.

The CDC has issued updated guidance to all nursing homes in an attempt to prevent the spread of COVID-19 in nursing homes. These measures include:  restricting all visitation except compassionate care situations; restricting all volunteers and non-essential healthcare personnel; canceling all group activities and communal dining; and active screening of residents and healthcare providers.

Here in California, the restrictions are being extended to state nursing home surveyors who normally provide oversight to detect “life-threatening infection control problems” and understaffing.  CANHR is calling for the California Department of Public Health take action to protect nursing home residents when they need it the most.

  • Reassigning nurse evaluators to monitor nursing homes onsite throughout the state until the crisis passes;
  • Closely monitoring nursing home staffing levels on a daily basis;
  • Issuing a moratorium on involuntary transfers and discharges of residents;
  • Ensuring nursing homes provide meaningful, frequent, and safe opportunities for residents to maintain contact with loved ones remotely until visitation is restored.

CANHR has a website specifically dedicated to provider alerts, news and resources regarding the COVID-19 Crisis as it relates to nursing homes. If you believe a loved one has been injured through neglect or abuse at a nursing home or residential care facility for the elderly, contact our offices at (619)238-8700.


Nursing homes and assisted living facilities have now gone to stricter measures to try to contain the threat of COVID-19.

Due to the novel coronavirus, homes have gone from asking guests to sign in and disclose prior travel, then to taking their temperature, to now requesting all nonessential visits be postponed indefinitely and ordering that residents not leave the facility nor their rooms. Many of these homes have graduated levels of care, from relatively independent living to more intensive physical and memory care. The continuing care community is at high risk as is widely known. Many individuals who succumb to the worst ravages of the virus already have underlying medical conditions. For safety of individuals and the community, administrators do not want residents with the ability to come and go on their own to participate in events with crowds or groups of more than ten people. The extreme precautions being undertaken at some homes include ordered complete isolation simply due to risk, aside from any testing or suspicion of infection.

At this point, as of this writing, most of these facilities have suspended group exercise classes and all other activities, and have made changes to their dining rooms, allowing only take-out meals, or delivering food or food choices on trays to rooms of individuals ordered isolated there.

Those who think they must visit any group living facility for elders should be ready to have explicit, important reasons to be there. Many homes are running low on supplies, and do not have the items needed to properly protect their residents, nor the resources to deal with visitors who must be turned away. Many homes were ill-equipped in the first place, through understaffing or undertraining. Compare your home’s track record:

Aside from providing love, company and a familiar friendly face, families also provide important monitoring and oversight of the care people are receiving. There are of course also concerns for those with dementia deteriorating without routine and regular stimulation and communications. The timing is bad in these situations, because family would like to be there more frequently and prevent the decline of the disease of dementia often exacerbated by isolation, loneliness and depression.

Stopping physical visits shouldn’t mean curtailing all communications from family and friends. Contact the home directly and ask that they help your family member get on-line, work email and do Skype or Facetime. A useful device to make authorized drop-in virtual visits without a lot of tech to handle for the elder is “Echo Show” which you can interface with through the Amazon Alexa app on the iphone app store. At the very least, make regular old-fashioned phone calls to keep tabs on your elder. Here are some useful links: ;

In some cases, families may want to take their loved one home with them, and that is being encouraged in some facilities, with the proviso that they then may not be permitted to re-enter until further notice. It may not always be the most wise choice. (See the second link in paragraph above for more details.) However, it may be hard to remove a resident, especially if they are very frail, have a chronic condition, or need a high level of care, or memory assistance. Be sure to have a plan in place for bathing, feeding and taking medicine. If you hire a home health agency, be sure to check them out well. Ask the agency what measures and precautions they will be taking when caring for your loved one. Monitor them. Anyone providing hands-on care should be following the current recommendations by the CDC.

Hope this information is helpful in some way to flatten the curve. Or, at the very least, hope it helps you stay as close as you can to your loved ones during these unprecedented circumstances. (Remind them to hydrate!) Be well.

If you believe a loved one has been injured through neglect or abuse at a nursing home or residential care facility for the elderly, please call us at (619) 238-8700


Just as we must collaborate to safeguard our society and banish COVID-19, so too is it necessary for us to unite in order protect the legal rights of our elderly citizens.

Healthcare lawyers can help in this crisis by providing patient advocacy, protecting the most severely affected including the elderly who are often not represented, especially when they are in nursing homes.

To slow the rising tide of the pandemic, family members and visitors are barred from visiting nursing home residents.  In a troubling, but not entirely surprising display of lousy timing, the Trump administration is also considering relaxing federal oversight on nursing homes, including rules meant to curb deadly infections among elderly residents. This is a foolhardy move on the heels of and in addition to CMS restricting nursing home visitors and non-essential personnel.

Who will protect our elderly and most vulnerable citizens if family and friends are denied access to them and nursing home oversight is relaxed NOW, in the middle of a pandemic? In these difficult times, we need more patient safety, not less.

Nursing homes house about 2.5 million people nationwide. Nursing home residents have already been identified as especially vulnerable to COVID-19. Because of their age and pre-existing health problems, the elderly are at an increased risk of not only contracting this virulent virus but also from dying from it. Nonetheless, the Trump administration announced plans to eliminate the requirement that nursing homes keep at least one infection-prevention specialist on hand.  These anti-infection specialists serve a key role, making sure nursing home staff stick to crucial safety rules, such as consistently washing their hands.

Recently, 31 coronavirus deaths were linked to a single long-term nursing home in Kirkland, Washington. The New York Times points out that as recently as last year, this same Life Care Center facility received multiple citations related to failings in its infection control systems.  This is precisely the type of risks anti-infection specialists are employed to prevent and to manage.

Now is the time to ramp up oversight of our countries’ nursing homes– when their loved ones are banned from visiting them and there is no one else able to watch over their care.


On June 24, 2019, a class action was certified against a San Diego stem cell clinic, StemGenex, Inc., its owners and related entities.  The lawsuit claims fraud, false advertising and violations of consumer law relating to stem cell treatments aggressively marketed to people with a variety of diseases and medical conditions. Moorer v. StemGenex Medical Group Inc., et al., United States District Court for the Southern District of California, Case No.: 16-cv-2816-AJB-NLS, Hon. Anthony J. Battaglia.

The case centers around patient satisfaction ratings that were published by the company on its website and in marketing materials showing 100% of prior patients were “satisfied” with the treatments.  The lawsuit claims that prospective patients purchased the treatments in reliance upon those figures, which were false.

StemGenex argued that their ads were simply an accurate reflection of next-day tallies of how people felt about the service and the company after they had just had the treatment.  But it was revealed during the lawsuit that the clinic had in fact received complaints from unsatisfied patients, for whom the stem cell treatments had little or no effect.  Often, patients were told that the best remedy would be to return for a second, expensive treatment.

The class is comprised of hundreds of customers throughout the United States, all of whom had the same type of treatment, a stem cell process which used each person’s own belly fat, and all of whom paid Defendants the same amount – $14,900 per treatment.   The Court ultimately agreed with the patients that their claims were suited for a class action, stating, “The questions asserted are common questions of fact and, as Plaintiffs acknowledge, the answers can apply to all class members in one swoop.”

In recent years, for-profit stem cell clinics have sprung up all around the country.  They often utilize sales forces and promote crowdfunding as a means of marketing types of stem cells which are not approved by the FDA for use in the United States.  In the absence of government oversight of private sector stem cell clinics, patients and consumers need to look to civil actions to protect their interests.

Plaintiff’s counsel, Mulligan Law, and Berger, Williams & Reynolds, in San Diego, continue on to the next phase of discovery and then to trial in the case.



Pedestrian Deaths Up By 35%

Recently, Smart Growth America released Dangerous By Design 2019, a report containing the results of their investigation of traffic accident data across the United States.  Smart Growth America is a non-profit organization that works with local and national governments and leaders to encourage safe development.

The report finds that pedestrian deaths on and around American roads increased 35% from 2008-2017. Pedestrian travel increased less than 1% during the same period.  Why are pedestrian deaths rising at such an alarming level, while the number of people walking is remaining essentially flat?

Why Is It Getting More Dangerous to Walk?

The Smart Growth report points the finger squarely at poor road design:

“Our federal policies, standards, and funding mechanisms that have been in place for decades produce dangerous roads that prioritize high speeds for cars over safety for all people.”

So where are the most dangerous places in America to talk a walk? Florida tops the list with a whopping 7 communities landing in the top 10 most deadly.  Our own Bakersfield, California is listed as the 7th most dangerous community overall.  Smart Growth reports that communities of older Americans, people of color, and low-income residents are the most affected by unsafe road design.

What Can We Do?

What can be done to push back against road designs that put pedestrians at risk?  Lawsuits against governments that design or approve unsafe road plans can be powerful tools.  But government immunities from criticism by lawsuits, such as “design immunity” in California, put up steep obstacles to such claims.  Design immunity prevents a government from being held liable for many discretionary decisions made by government officials.

It is recommended that if you or a loved one have been injured in a way that might suggest road design is even partially to blame, that you consult with a Pedestrian Injury Attorney, or Defective Road Design Attorney immediately, such as the attorneys at our law firm.

See the full report for a complete listing of the most dangerous communities in America for pedestrians, the most vulnerable populations, and an interactive map of the data collected by Smart Growth.



Jan is not only knowledgeable and professional, but she has a true heart for helping people. Practicing law is her ‘purpose and passion’ and she displays this through her compassion and caring, [and] her fire and tenacity. Jan fights for her clients and she does not back down. She is honest and direct.

Client P

I cannot say enough about the professionalism and knowledge Jan has shown. She is on it! People like her are so rare to come by. I would give her 10 stars if I could! I will recommend her to any friend or family member I know.

Client CH

A skilled team who understands people as well as law.

Client EK

They give their everything and more. Super Smart, Super Diligent, Compassionate, Warm and Caring, Upfront and Honest.

Client MM

Jan was nothing short of amazing in her verbal dominance of the other side in depositions and trial arguments. Let’s say I am very glad she was on my side of the table. At the conclusion of my case the judge looked at me and said, hope you appreciate the Herculean effort that your lawyers gave in this case. Believe me I did! That’s just how they roll.

Client A.V.