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Insights from the ABA National Institute on E-Discovery – Part 1

May 31st, 2012
in Insurance & Reinsurance, Law Firm Management, Legal Conferences, Litigation |

Expert Article by Wystan M. Ackerman

Last week I attended the ABA National Institute on E-Discovery in New York.  Here is part one of my summary of some key insights from the conference:

  • Use of Social Media by Company Employees:  When companies allow their employees to access social media websites from corporate computers and information regarding company business is posted on such sites (sometimes in violation of company policy), that can present significant problems when such information is requested in discovery.  The recommendation of one of the panelists was that companies should prohibit access from corporate computers and posting of corporate information by employees.  But it was also reported that some companies are allowing access and even forming their own internal “social media” intranet sites where employees can have online conversations, conduct seminars, create groups, etc.  That can sometimes present challenges for implementing litigation holds and preserving and collecting data from these sites when required in litigation.
  • Obtaining Social Media Discovery from Plaintiffs:  This can potentially be a fertile ground for discovery from named plaintiffs in putative class actions (but keep in mind that this may spark requests for such information from the defendant, depending on what the company’s policy is regarding employee access to and use of such sites).  Magistrate Judge Kristen Mix of the District of Colorado gave a very thorough presentation on this subject.  She explained that Facebook tends to fight civil subpoenas, based on the Stored Communications Act and Electronic Communications Privacy Act, although courts sometimes order compliance.  Facebook’s formal written policy is somewhat vague regarding its response to subpoenas:

Responding to legal requests and preventing harm

We may share your information in response to a legal request (like a search warrant, court order or subpoena) if we have a good faith belief that the law requires us to do so. This may include responding to legal requests from jurisdictions outside of the United States where we have a good faith belief that the response is required by law in that jurisdiction, affects users in that jurisdiction, and is consistent with internationally recognized standards. We may also share information when we have a good faith belief it is necessary to: detect, prevent and address fraud and other illegal activity; to protect ourselves and you from violations of our Statement of Rights and Responsibilities; and to prevent death or imminent bodily harm.

While Facebook reportedly tends to fight civil subpoenas, it provides a “button” whereby a user can download his or her entire content for purposes of responding to discovery requests (or other purposes).  Requesting that the opposing party do this in a document request and if necessary seeking a court order requiring them to download the content themselves is often a more expeditious route than serving a subpoena on Facebook.  But there can be technical issues – sometimes the “button” will not work effectively for users that post a large amount of content on Facebook.  There also could be concerns about material being deleted by the user, which may or may not be retained by Facebook.  Judge Mix emphasized that many judges are not that familiar with social media sites and how they work because, to avoid any appearance of impropriety in becoming “friends” with lawyers and others, many judges tend to eschew entirely participation in these sites.  That makes it important to explain these things thoroughly in discovery hearings and any motion practice, and not assume the judge knows the basics of how social media sites work.

 

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Wystan M. Ackerman

May 30th, 2012
in Expert Guest Blog Entries, Insurance & Reinsurance, Law Firm Management, Legal Conferences, Litigation |

Biography

Portrait of author Wystan Ackerman

Wystan Ackerman chairs the firm’s Class Action Team. He has defended class actions in a variety of substantive areas and industries, including insurance, products liability, financial services, consumer contracts and securities.  Based in the insurance capital of Hartford, Connecticut, Wystan’s practice has a major focus on insurance.  He writes the blog Insurance Class Actions Insider at www.insuranceclassactions.com, which was selected by Lexis Nexis as a top insurance blog for 2011.Mr. Ackerman regularly serves as national counsel for insurance companies in class actions, complex coverage litigation, and appeals. He currently represents insurance carriers in various putative class actions involving insurance coverage and market conduct/claim-handling practices. He has served on the defendants’ steering committee and as a lead author of trial and appellate briefs on behalf of numerous insurers in high-profile class actions arising from Hurricanes Katrina and Rita, such as In re Katrina Canal Breaches Litigation (flood exclusion), the Louisiana attorney general’s class action against the insurance industry involving the Road Home program, and the class action litigation involving the Louisiana Valued Policy Law.

Mr. Ackerman also has substantial experience advising insurers with respect to complex coverage issues and litigating coverage cases at the trial and appellate levels. He is currently advising insurers with respect to homeowners, commercial property, and builders risk claims for Chinese-made drywall. He also serves as national coordinating counsel and appellate counsel to insurers and to a major insurance industry association (as amicus curiae) in cases involving important coverage issues. He has litigated appeals in the First, Second, Third, Fourth, Fifth, Eighth, and Eleventh Circuits, as well as in various state appellate and supreme courts, and has engaged in certiorari practice in the U.S. Supreme Court.

Mr. Ackerman is also regularly asked to consult on important insurance cases in which he collaborates with lead counsel and in-house counsel on briefing and preparation for oral arguments, including participating in moot courts. He regularly works with lawyers across the country in this role.

Mr. Ackerman has been included on the Connecticut Super Lawyers® Rising Star list since 2010 in the areas of Insurance Coverage and Class Action Law (Super Lawyers is a registered trademark of Key Professional Media, Inc.). Prior to joining Robinson & Cole, Mr. Ackerman was associated with the law firm of Skadden, Arps, Slate, Meagher & Flom LLP, where his practice focused on complex business litigation, including insurance and securities class actions and litigation involving commercial contracts and corporate governance.

You can subscribe to blog posts by Wystan Ackerman at:

http://www.ralawemployment.blogspot.com

Expert Articles

 Contact Wystan M. Ackerman

280 Trumbull StreetHartford, CT 06103-3597

email address: wackerman@rc.com

Phone: 860-275-8388

Fax: 860-275-8299

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Employers and Franchises Beware: GPS Tracking May Result in Liability

May 29th, 2012
in Employment & Benefits, Law Firm Management, Legal Conferences, Litigation |

Expert Article by Jonathan Secrest

In January, the Supreme Court ruled that law enforcement must obtain a valid search warrant prior to placing a GPS tracking device on a suspect’s vehicle. In United States v. Jones, Case No. 10-1259, the Supreme Court determined that placing the GPS on a suspect’s vehicle violated the Fourth Amendment, which protects against unreasonable searches and seizures.

The Fourth Amendment applies only to actions taken by those acting on behalf of federal, state or local government; however, the Supreme Court’s decision may apply to the actions of franchises that track the movements of employees.

Franchises that track their employees (who utilize company vehicles, in particular) with GPS devices should be aware of the privacy and liability issues that can arise from such action. Justice Scalia, who authored the majority opinion in Jones,concluded that monitoring an individual’s physical location through the use of a GPS device did not implicate any privacy issues. Justice Scalia reasoned that the location of a person or vehicle in a public place is not private. Five other justices, while agreeing with Justice Scalia’s overall decision, disagreed with the notion that GPS devices do not infringe on a person’s privacy. Justice Sotomayor stated, “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” In short, five justices of the Supreme Court determined that tracking an individual with a GPS device potentially infringes on that person’s privacy. The question is whether other judges share the same view and would recognize a claim for invasion of privacy based on an the use of a GPS device to track an employee’s movements. Accordingly, employers should be cognizant that unfettered tracking of an employee’s physical location may result in liability.

Of course, utilizing GPS devices can create other issues for employers as well. For example, tracking an employee may reveal that he or she visited a synagogue or health care clinic, inadvertently providing information about that employee’s religion or health status. The employee could then use the employer’s knowledge to support a claim of discrimination. Employers should take measures to insure they track employees’ movements only during working hours. If an employee is conducting private business during work hours, there is a valid argument as to why the employee’s movements are relevant to the employer’s business and monitoring such movements does not invade the employee’s privacy.

 
 

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Carpal Tunnel Syndrome May Be a Disability under the ADA

May 27th, 2012
in Employment & Benefits, Legal Conferences, Litigation |

Expert Article by ALEXANDER J. KIPP 

Since the passage of the ADA Amendments Act in 2008, courts have seen an increasing number of ADA discrimination claims against employers stemming from run-of-the-mill workers’ compensation claims.

The United States District Court’s holding in Gibbs v. ADS Alliance Data Systems, Inc., 2011 WL 3205779 (D. Kansas), drives home the point that many claimants with work-related injuries will now find coverage under the ADA. The plaintiff, Olivia Gibbs, was employed by ADS Alliance Data Systems, Inc. and CVS. Ms. Gibbs was injured while working for CVS. A nerve conduction study following her injury revealed carpal tunnel syndrome, which her doctor attributed to the repetitive nature of Ms. Gibbs’ sales and service representative position atAlliance. Ms. Gibbs then filed for workers’ compensation benefits.

 Ms. Gibbs underwent carpal tunnel surgery on her right wrist in December 2008. She returned to work nine days later with restrictions that permitted her to work only with her left hand. Despite the work restrictions and a light duty assignment, Ms. Gibbs’ production numbers were not reduced and she was forced to use her right hand to keep up.

As a result, Ms. Gibbs wrote a letter to her human resources manager requesting a different light duty assignment. Evidence in the record revealed that Alliance was frustrated with Ms. Gibbs’ requests for accommodation, and that her supervisor told her that the company was “losing money” on her.

 In December 2009, Ms. Gibbs informed Alliance that she needed to have carpal tunnel surgery on her left wrist. The surgery took place and Ms. Gibbs was returned to full duty by her doctor on January 8, 2009. The following day, the Alliance HR manager observed Ms. Gibbs soliciting other employees to purchase Avon products. Ms. Gibbs denied the allegation; however, she was promptly terminated based on a violation of the company’s Solicitation and Distribution Policy.

 Ms. Gibbs filed suit against Alliance and alleged that her firing violated the ADA. She claimed that Alliance terminated her based on her disability, i.e., bilateral carpal tunnel syndrome, and that her termination was in retaliation for her engaging in protected activity under the ADA. Alliance moved for summary judgment on both claims.

 In rejecting Alliance’s motion for summary judgment, the court began by noting:

 [t]he ADA Amendments Act of 2008 (ADAAA) has ”lowered the bar” on the disability inquiry. … While an ADA plaintiff must still show that he or she has a physical or mental impairment that substantially limits a major life activity, 42 U.S.C. § 12102(1)(A), the ADAAA has ”significantly expanded” the terms within that definition in favor of broad coverage. … “[T]he question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis” and … the “primary object of attention in cases brought under the ADAshould be whether entities covered under theADA have complied with their obligations.”

 The district court therefore held that, “After examining the evidence in the record bearing on this issue (certainly there is some evidence that plaintiff’s condition affected her ability to perform manual tasks), and keeping in mind that this inquiry is not meant to be ‘extensive’ or demanding, the court concludes that genuine issues of material fact exist as to whether plaintiff’s carpal tunnel syndrome constitutes a disability within the meaning of the ADA.”

 The court rejected Alliance’s argument that its solicitation policy provided a legitimate, non-discriminatory reason to terminate Ms. Gibbs. “Defendant’s solicitation policy, on its face, does not contemplate termination for a violation of the policy; it states that an employee who violates this policy ‘may’ be subject to counseling.” The court noted that the decision to terminate Ms. Gibbs rather than counsel her casts doubt on reason for her termination.

 The court also denied summary judgment on Ms. Gibbs’ retaliation claim. It commented, “the timing of the decision to terminate plaintiff’s employment – just 4 weeks after plaintiff requested an accommodation based on her condition – is sufficient to create genuine issues of material fact as to whether defendant’s proffered reason for terminating plaintiff’s employment was pretextual.”

 This is certainly a case worth following. As developments arise, Roetzel & Andress will provide further information and guidance to assist you. Please contact any of our offices to discuss this matter further with one of our employment services attorneys.

 

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ALEXANDER J. KIPP

May 26th, 2012
in Employment & Benefits, Legal Conferences, Litigation |

Biography

Mr. Kipp’s practice focuses on defending employers in general employment matters and workers’ compensation claims.

 

 

Professional Affiliations – Ohio State Bar Association

Community Affiliations – Assistant Varsity Lacrosse Coach, St. Ignatius High School, Cleveland

Admissions – Ohio

Education

  • 2006 J.D., Cleveland-Marshall College of Law
  • CALI Excellence Award – Legal Professionalism
  • Entertainment & Sports Law Association, Secretary
  • 2002 B.A., Saint Vincent College, History

Languages Spoken – Limited in Spanish

 

Expert Articles

Contact ALEXANDER J. KIPP

  • Phone: (216) 820-4204
  • Fax: (216) 623-0134
  • Email: Email Me

 

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Anti-Corruption Southern Africa

May 25th, 2012
in Anti-Corruption / FCPA, Regulatory & Compliance |

In October 2011, South African President Jacob Zuma ordered a new probe into the infamous Arms Deal that involved corruption and bribery allegations during a R30 billion procurement deal. The new commission of enquiry will now have two years in which to finally put the arms deal scandal to rest.  Meanwhile, yet another South African police chief and government ministers have hit headlines in the latest round of corruption allegations against President Zuma’s government.

Adding to mounting pressure, Japanese-based Marubeni Corporation has agreed to pay $54.6 million to resolve FCPA charges related to a decade-long scheme to bribe government officials in Africa, further demonstrates that no company is beyond the reach of the US Foreign Corrupt Practices Act. This is coupled with the implementation of the UK Bribery Act in July 2011 which will have extraterritorial reach throughout Southern Africa for any company that carries on any “part of a business” in the UK. Accordingly, all companies doing business or investing in Southern Africa and local companies listed on foreign stock exchanges or with ties to foreign companies must take extra care to ensure their organisation fosters a culture of strict compliance from management down and that ALL potential corruption and bribery risks are detected and minimised as quickly as possible to avoid intrusive government investigations, significant fines and costly settlement arrangements.

Following last year’s sell out success, C5 is pleased to bring you the second Forum on Anti-Corruption – Southern Africa Edition which will once again bring together a leading faculty of experienced in-house and private practice lawyers, compliance executives and government officials who will provide the latest strategies to facilitate compliance with Southern African, US, UK and European anti-corruption laws and mitigate damages should a violation occur.

The fully updated agenda for 2012 includes:

  • Southern Africa’s anti-corruption legislative reform and enforcement efforts:  How the past year’s developments have changed the face of corporate compliance.
  • How the Extraterritorial Reach of the UK Bribery Act will impact Southern African Business: Putting “Adequate Procedures” and a “failure to prevent bribery…” into Regional Context.
  • What’s Next for FCPA Enforcement: What local and international Southern African Based Organisations Needs to Know.
  • Building a Culture of Compliance from the Top Down: Getting Buy In and Leadership Support.
  • Conducting thorough risk-based due diligence against all third parties to control and minimise liability risks.
  • Installing a strong and safe whistleblowing system that employees will use: Accounting for cultural nuances.
  • Navigating the Southern African customs process: Who to trust? What to Avoid? How to Respond to facilitation payment requests.
  • Private to Private Corruption: New ways the private sector can be implicated in bribery and corrupt practices.

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Consumer Finance Class Actions & Litigation

May 23rd, 2012
in Financial Services, Legal Conferences, Litigation |

Consumer financial services companies are facing unprecedented regulatory and enforcement scrutiny and mounting litigation, and there is no sign of change coming anytime soon. That is why it is essential that in-house an outside counsel have a mastery of new class action trends, emerging theories of liability, and effective defense and settlement strategies.

It is with this in mind that American Conference Institute has developed its14th National Conference on Consumer Finance Class Actions & Litigation. We have assembled an unparalleled faculty of federal and state regulatory and enforcement officials, senior in-house counsel, renowned federal and state judges, and leading outside defense counsel who will provide you with expert advice, critical insights, and comprehensive updates on:

  • Adapting to the emerging regulatory and enforcement paradigm, with a focus on how the CFPB is going to impact consume finance litigation going forward
  • Best practices for defending against class actions arising from TCPA, FCRA, FDCPA, loan modificfations, foreclosure practices, fee products, credit/debit cards, student loans, and auto loans, and key considerations when making the decision to settle
  • Assessing how the courts are applying Wal-Mart v. Dukes and AT&T Mobility v. Concepcion to consumer finance litigation and determining how best to argue against class certification
  • Managing and defending against claims of discriminatory lending and assessing the status of ‘disparate impact’ in lending litigation and enforcement

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ITAR Compliance

May 22nd, 2012
in International Trade & Defense |

Evolve Your Global ITAR Compliance Program in Preparation for Export Control Reform, Regulatory Changes and the Current Rise in Enforcement

Whether you are a large, mid-size or small exporter, American Conference Institute’s 7th Advanced Forum on ITAR Compliance offers you a highly worthwhile networking and benchmarking opportunity with senior-level decision-makers from government and industry. Few events like this one are able to gather the who’s who of the ITAR community all in one room!

Take this opportunity to gain best practices and forge key relationships with our new 2012 expert faculty from DDTC, BIS, DTSA, DoJ, BAE, Cisco, General Dynamics, Boeing, Raytheon, Smiths Group, Virgin Galactic, DRS, AECOM, Hydra Electric, Meggitt, Virginia Polytechnic Institute, The MITRE Corporation, Northrop Grumman, Exelis, Rolls Royce North America, International Rectifier Corporation, ATK and Hawker Beechcraft.

Unlike other ITAR training events, this highly sophisticated, practical conference will focus on how to address the most complex and emerging ITAR compliance and enforcement risks impacting your business.

2012 PROGRAM UPDATES:

New Keynote Addresses

  • Gain policy insights from Kevin Maloney, Director, Defense Trade Controls Licensing, DDTC
  • First-hand updates on the status of USML-CCL changes from Todd E. Willis, Director, Munitions Control Division, Office of Strategic Industries and Economic Security, BIS
  • Ask William Mackie, U.S. Attorney’s Office, Eastern District of Tennessee, Prosecutor in the J. Reece Roth case, about what triggers prosecutions of individuals instead of companies for ITAR violations
  • Hear from Michael Laychak, Director, Licensing Directorate, DTSA on new requirements and expectations for CJ requests
  • Ask Steven Pelak, National Export Coordinator, DoJ about how ITAR cases against companies and individuals are investigated and litigated, and priorities going forward

New 2012 Sessions Include:

  • Re-evaluating your approach to identifying a “broker” and “brokering” based on current requirements and proposed changes to expand the definitions
  • Take away best practices from ATK and Virgin Galactic on classifying foreign-origin or produced items as “ITAR-Free”: Resolving intricate jurisdiction determination challenges posed by the extraterritorial reach of the ITAR
  • Benchmark with Raytheon on how to integrate complex ITAR license provisos, TAAs and cyber security risk management into your IT infrastructure
  • Hear from BAE Systems plc and the Special Compliance Monitor for Xe Services (now Academi) on how to implement remedial measures during and after an ITAR investigation
  • Hear from Northrop Grumman on how to prepare your sales, procurement and other teams for export control reform, and manage expectations of your staff and customers
  • Take away practical insights from GE Aviation, Rolls Royce North America and Hydra Electric on how to strengthen your global ITAR compliance program for your parent and foreign subsidiary operations
  • Refine your approach to conducting internal audits to close out a settlement or voluntary disclosure
  • Navigate the congressional notification process and minimize the risk of delay

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Cyber & Data Risk Insurance

May 21st, 2012
in Insurance & Reinsurance, Telecoms & Technology |

The number of breach incidents and compromised records is staggering!And as a result, state attorneys generals and federal regulators and enforcers have proactively investigated and penalized companies in a major way. Furthermore, the demand for cyber policies is on the rise as businesses have changed their approaches to storing data.

Information is no longer stored in the company’s servers. Now businesses are storing sensitive and confidential information with cloud vendors, exposing the information to new types of data breaches. As technology and products continue to change and evolve, it is critical that you are up to date in the ever growing area of cyber and data risk insurance.

In response to new risks and exposures, American Conference Institute has
developed the 6th installment of its lauded Cyber & Data Risk Insuranceconference. A September tradition in NYC, join us again to hear from a highly regarded faculty including the FBI, FTC, various state AG offices, as well as the industry’s leaders from around the country. Each year the event has grown in scope and size and this year the agenda is brimming with cutting edge topics as well as new additions to the faculty. Th is is the industry’s “go to” event where you can learn about advancements in technology, products, pricing, coverage options, prevention and strategies to better protect your company from potential liabilities and exposure to risk.

Hear and network with the industry leaders about the right coverage options for your company and how you can protect data from financial and reputational loss. Compare products, learn about pricing policies, and new exposures to risk in this ever growing industry. Whether you are an insurance agent, broker, risk adjuster, claims manager, or counsel you will walk away from the conference with invaluable information that you can use in your practice right away.

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HEALTHCARE PROVIDER DISPUTES AND LITIGATION

May 20th, 2012
in Healthcare, Legal Conferences, Litigation |

An alarming percentage of healthcare funding is spent on fraud, waste and abuse each year. As the rate of fraud increases, the out of pocket cost to patients without health insurance continue to skyrocket.

Effective litigation strategies can help to contain your costs. ACI is pleased to present itsAdvanced Forum on Healthcare Provider Disputes and Litigation, taking place July 30 – August 1, 2012 in Chicago, and featuring trial attorneys and in-house counsel who have been active in some of the year’s biggest cases. No other forum provides the opportunity to share proactive litigation strategies and tactics to enhance your likelihood of success at trial.

In an era of increasing litigiousness, healthcare attorneys are struggling to answer questions surrounding: antitrust, billing fraud, individual accountability, and restrictive covenant arrangements. Leading provider-side litigators will help solve your biggest challenges, while facilitating much needed discussions with your industry peers. With the government taking a most scrupulous eye towards the activity of healthcare providers, hear directly from litigators at the forefront of the action, who will tell you where enforcement priorities are headed and how to diminish your risk of a lengthy and costly government investigation.

Overcome the Growing e-Discovery Burden Resulting From the Shift to Electronic Medical Records

Electronic data is the wave of the present and future with respect to patient medical records. With advances in technology comes greater risk for a data breach, and more onerous discovery production requirements. Rather than bury your head in the proverbial sand, let our faculty of e-Discovery experts assist in streamlining the process. You will learn how to protect against inadvertent and inappropriate disclosure of protected health information, while ensuring that you are disclosing necessary data to the government and to your opponent.

Learning Add-Ons Increase Your Conference Takeaways

In order to successfully argue for or against ERISA preemption, you must understand the basics. Provider litigation often hinges on these issues and
ERISA 101: Dissecting the Fundamentals for Health Care Litigators will teach attendees the complexities and nuance of this statute. A failure to understand this statute can lead you or your clients to large amounts of liability, tax penalties, or litigation.

At the post-conference ADVANCED SKILLS SESSION: Developing a HIPAA
Risk Assessment to Avoid Litigation Difficulties, attendees will gain a clear understanding of the HIPAA statute and its potential impact on your litigation. Because of the sensitive nature of patient records, providers are increasingly vulnerable to HIPAA violations, and assessing your current protocols are of the utmost essence. Leading HIPAA attorneys will provide insights on the latest statutory developments, and offer practical tips to ensure your privacy protocols are in place.

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