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Industry News Roundup – Data Breach

January 29th, 2016
in Financial Services, Litigation |



1. Jon Fingas, Engadget, Wendy’s Looks Into Claims of a Credit Card Data Breach (January 27, 2016)

2. Dan Munro, Forbes, Data Breaches In Healthcare Totaled Over 112 Million Records In 2015 (December 31, 2015)

3. Jennifer LeClaire, Top Tech News, Uber Pays $20,000 Fine for Not Reporting Data Breach (January 7, 2016)

4. Sara Heath,  HealthITSecurity, Hacking Accounts for 98% of Healthcare Data Breaches in 2015 (January 28, 2016) (more…)

Cyber Security and Data Privacy & Protection: Q&A with Conference Co-Chair Jeanette Fitzgerald

January 11th, 2016
in Financial Services, Litigation |

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Jeanette Fitzgerald, EVP and General Counsel, Epsilon, will be co-chairing ACI’s 18th Advanced Global, Legal and Compliance Forum on Cyber Security & Data Privacy and Protection, January 28-29, 2016 at the Park Hyatt Washington in Washington, D.C. In anticipation of the conference, check out our recent Q&A with Jeanette.

How will the Wyndham decision affect the way “due diligence” is defined, with reference to the protection of digital security?

Digital security is an inviolable foundation on which every company involved with data must be built.  The Wyndham decision has reinforced this notion, prompting some businesses to re-evaluate their information security practices, safeguards, and continuous monitoring processes.  While companies may interpret “due diligence” differently, as a result of the decision, businesses should take into consideration the FTC’s interpretation of cyber security practices per Section 5 of the FTC Act, as well as take into consideration FTC Consent Orders regarding data breaches.  Both should be utilized in the modeling of cyber security practices.  (more…)

ACI’s Advanced Forum on Patent Litigation

October 3rd, 2013
in Legal Conferences, Litigation |

Managing Modern IP Litigation before the Federal Courts, PTO and ITC

Patent Litigation - ACI Legal Conference

When: Tuesday, December 10 to Wednesday, December 11, 2013

Where: The Carlton Hotel, New York, New York

To learn more & register: Click Here

Industry Related News


F.T.C. Votes for Inquiry Into Patent Businesses Posted on by Edward Wyatt

tepping into a volatile debate in the technology sector, the Federal Trade Commission on Friday said it would use its subpoena power to begin an investigation of so-called patent trolls, businesses whose primary purpose is to stockpile patents and use them to sue other companies. he action, which the commission’s chairwoman recommended in June, is the first step in what is likely to be a lengthy and broad investigation. It could eventually result in antitrust enforcement against some of the companies and could provide momentum for efforts under way in Congress to tighten restrictions on such lawsuits…. [ Read More ]


To download past intellectual property event publications: Click Here

Consumer Products Regulation & Litigation

May 7th, 2013
in Food and Beverage, Legal Conferences, Regulatory & Compliance |

Essential strategies for overcoming regulatory and litigation hurdles in consumer products


When: Wednesday, June 26 to Thursday, June 27, 2013

Where: Chicago-Mart Plaza (Riverview) Hotel, Chicago, IL

For more information, and to register: click here

Industry News


Industry related article from, by Mary Schwager, posted on 05/07/13:


Williams-Sonoma fined for failure to report defects in Pottery Barn products

Williams-Sonoma: BUSTED! The retailer is dishing out nearly a million dollars to pay a civil penalty to the Feds for failing to report product safety defects it knew about. Companies are supposed to report any defects, product failures or people injured by defective merchandise to the US Consumer Product Safety Commission ASAP. Looks like the company didn’t follow that ASAP part.

The defective product is a hammock stand made by Pottery Barn, a company owned by Williams-Sonoma. Here’s a link to the original recall in case you have one in your backyard.

The CPSC put out a news release today saying:

Williams-Sonoma, Inc., of San Francisco, Calif., has agreed to pay a $987,500 civil penalty.

In addition to paying a monetary penalty, Williams-Sonoma has agreed to implement and maintain a compliance program designed to ensure compliance with the safety statutes and regulations enforced by the Commission. Williams-Sonoma has also agreed to maintain and enforce a system of internal controls and procedures designed to ensure that:

  • Information required to be disclosed by the firm to the Commission is recorded, processed, and reported, in accordance with applicable law;

  • All reporting made to the Commission is timely, truthful, complete, and accurate; and

  • Prompt disclosure is made to Williams-Sonoma’s management of any significant deficiencies or material weaknesses in the design or operation of such internal controls that are reasonably likely to adversely affect, in any material respect, the company’s ability to report to the Commission.

Williams-Sonoma further agreed to provide written documentation of such improvements, processes, and controls, upon request of CPSC staff; to cooperate fully and truthfully with CPSC staff; and to make available all information, materials, and personnel deemed necessary to staff to evaluate the company’s compliance with the terms of the agreement.

The settlement resolves CPSC staff’s charges that the firm knowingly failed to report to CPSC immediately, as required by federal law, a defect involving Pottery Barn wooden hammock stands. Williams-Sonoma imported the wooden hammock stands between March 2003 and July 2008, and distributed them exclusively through Pottery Barn and PBteen catalogs and websites, and Pottery Barn Outlet stores. The hammock stands were sold nationwide for approximately $300.

CPSC staff alleged that when used outdoors, the wood in the hammock stands can deteriorate over time and break. Because the deterioration was occurring inside the metal bracket and was hidden from view, there was sometimes no outward indication to consumers that the wood was rotting until a consumer sat in the hammock and the beams broke. This posed fall and laceration hazards to consumers.

Williams-Sonoma did not file its full report with CPSC until September 11, 2008. On October 1, 2008, Williams-Sonoma and CPSC announced the recall of 30,000 wooden hammock stands. By that time, Williams-Sonoma was aware of 45 incidents involving the hammocks, including 12 reports of injuries requiring medical attention for lacerations, neck and back pain, bruising, and one incident involving fractured ribs.

Federal law requires manufacturers, distributors, and retailers to report to CPSC immediately (within 24 hours) after obtaining information reasonably supporting the conclusion that a product contains a defect which could create a substantial product hazard, creates an unreasonable risk of serious injury or death, or fails to comply with any consumer product safety rule or any other rule, regulation, standard, or ban enforced by CPSC.

ACI’s 13th Annual Maximizing Pharmaceutical Patent Lifecycles Conference

August 30th, 2012
in Hatch-Waxman, Healthcare, Intellectual Property, Legal Conferences, Regulatory & Compliance |

 When: Wednesday, October 10 to Thursday, October 11, 2012

Where: New York Marriott Downtown, New York, NY, USA

Over 3000 patent professionals representing both branded and generic manufacturers have learned why ACI’s Maximizing Pharmaceutical Patent Life Cycles Conference is the original and best drug life cycle management conference in the U.S.  This year’s iteration will without a doubt continue the event’s long tradition of excellence in educating top professionals on the details of this complex but vital aspect of effective patent portfolio management. Featuring government officials from the USPTO, FDA, and FTC, our faculty will share best practices for:

- Understanding how the patent cliff will impact innovation and R&D, and alter the industry dynamic between brand names and generics

- Preparing for how the recently issued FDA regulations on biosimilars and the further implementation of BPCIA will affect pharmaceutical patent life cycle management strategies

- Assessing how the combined evolution of prior art obvious and obvious-type double patenting are influencing the future of secondary patents

- Evaluating patent life cycle strategies relative to personalized medicine vis-à-vis section 101 patentability post-Prometheus

- Examining the impact of REMS studies on generic entry

- Deciphering the relationship between use code controversies and inducement and divided infringement actions relative to Orange Book listings post-Caraco

- Exploring forfeiture rulings post-Lipitor

- Navigating new safe harbor dilemmas for both general screening and research tool patents


We are also pleased to offer the in-depth and practical training and strategy sessions that will address the essential and emerging focus of pharmaceutical patent life cycle management: 

  • Working Group Session: Assessing the Impact of New PTO Procedures Under the AIA on Hatch-Waxman Strategies Relative to Patent Life Cycle Management will offer in-depth and pragmatic advice for navigating the PTO’s new post-grant review and inter partes review proceedings, and much more.
  • PTA- PTE Boot Camp: Basic Training in the Essentials of Patent Term Adjustment and Patent Term Restoration for Patent Lawyers Serving the Biopharmaceutical Industry will offer critical instruction on the fundamentals and mechanics of PTA and PTE practice which help to ensure patent and profit longevity

With a track record of attracting top counsel and business development executives from both branded and generic drug manufacturers, this event is a prime networking opportunity. Past iterations of have sold out – visit the conference home page, learn more about our exciting faculty of in-house, private practice, and government experts, and reserve your spot today!


ACI’s FDA & USDA Compliance Boot Camp

August 28th, 2012
in Food and Beverage, Legal Conferences, Regulatory & Compliance |

 When: Wednesday, October 03 to Thursday, October 04, 2012

Where: Millennium Knickerbocker, Chicago, IL, USA

Over the past month, the FDA has been busy issuing reports, releasing guidance and taking regulatory action as per directives required under the Food Safety Modernization Act, including:

  • The recent issuance of the 2012 Annual Report on Food Facilities, Food Imports, and FDA Foreign Offices
  • Publication of an updated guidance for industry on the use of food categories in food facility registrations
  • A pending proposal to amend the food additive regulations to no longer provide for the use of Bisphenol A

How is your company prepared to respond to the many new regulatory changes expected under FSMA?

An invaluable opportunity to network and benchmark with your in-house peers, while also gaining firsthand insights directly from the FDA, FSIS, USDA and FTC, ACI’s FDA & USDA Compliance Boot Camp will include several sessions specifically dedicated to addressing new food safety requirements under FSMA, including:

  • IMPORTS – how to ensure the safety of your food supply and comply with expected reform under Title III
  • INSPECTIONS – addressing new Government jurisdiction and authority – what your company can do now to prepare
  • FOOD and ANIMAL FEED – inside the current debate surrounding the agricultural use of antibiotics in livestock

Also benefit in-depth sessions on:

  • The Jurisdiction, Function, Organization and Operations of the FDA, USDA, FTC and Other Health Agencies
  • The Core Components of a Compliant Package Label
  • GRAS and the Premarket Review and Approval Process for Food Additives
  • How to Meet Strict FDA and USDA Food Safety Regulations to Prevent Adulteration and Contamination
  • What Can and Cannot Be Said When Crafting Marketing and Advertising Claims
  • How to Prepare and What to do to Prevent Pitfalls during Government Inspections

Take part in the following Mock Scenarios:

  • How to Bring a New Food Market to Product – Best Practices of Ensuring Your Product Complies with Regulatory Requirements Across all Fronts
  • Recall Management – How to Effectively Oversee a Recall and Avoid Common Mistakes that Lead to Litigation

Learn how to connect the dots of food regulatory law while gaining a clearer
understanding of how the FDA, USDA and FTC work together to regulate the food industry.

 Optimize your networking opportunities by joining us at the Interactive Working Group:

A – FDA, USDA and FTC Food Law Fundamentals
B – Food Counsel’s Guide to Navigating the Legal Landscape in California

An added benefit of attending this event, attendees will receive a printed binder of materials which will include references to and copies of all the key regulations governing food and beverage products as well as all speaker presentation materials. Attendees are free to keep this binder and refer to it as a reference guide that can be shared and utilized as an information resource once back in the office.


The Role of Legal in “Architecting a Connected Enterprise”

December 19th, 2011
in Advertising & Marketing, Expert Guest Blog Entries |

Expert Article by Kyle-Beth Hilfer 

In September, I met web strategist Jeremiah Owyang, Industry Analyst at Altimeter at FSMU 2011. Jeremiah and I recently discussed his KMWorld speech “Social Readiness: Architecting a Connected Enterprise.” I share five areas for questions and thoughts here.

1. SOCIAL MEDIA CRISES ON THE RISE. HAS THERE BEEN LEGAL VETTING? Jeremiah rightly points out at slide 10 that social media crises are on the rise. Slide 14 offers possible causes for the social media crises over a ten-year period and states that more than one cause may apply. I wonder about the overlap between violation of legal guidelines and the other root causes. I also question whether appropriate legal vetting by a specialized attorney, rather than general counsel, may have helped dilute some of the other causes, such as rogue employees, lack of fact checking, or inappropriate online responses. If we look at slide 16 on “Readiness Requirements” or slide 35 that describes the “Average Composition of Social Media Team,” we see that there is no legal personnel on the slides. While the social media team slide covers only full time employees, it underscores a deficit in the organization of many social media teams.

2. SOME SOCIAL MEDIA CRISES ARE INEVITABLE. OR ARE THEY? Jeremiah’s report points out at slide 11 that one-quarter of social media crises were inevitable. It would be interesting to look at these closely and see if something from a legal perspective distinguishes them from the rest. Are the crises legal or pr? Was legal review implemented sufficiently early in the process to avoid a crisis down the line? Were the lawyers not being creative enough from the start? Social media legal vetting requires not just specialized legal judgment but also business acumen from the reviewing attorney.

3. WHAT IS SPECIAL ABOUT CONSUMER GOODS COMPANIES? Jeremiah notes at slide 12 that consumer goods companies experience most social media crises. This is a fascinating point. Is this because consumer products lend themselves more to social media marketing so they are just in the social space more than other types of businesses? Or is there something about consumer goods that creates an increased likelihood of something going wrong? Certainly, from a lawyer’s perspective, I see consistent innovation in the consumer goods companies’ development of promotion and marketing tools.

4. WHY ARE COMPANIES STILL IGNORANT OF OR IGNORING THE FTC ENDORSEMENT & TESTIMONIAL GUIDELINES? Slide 8 of Jermiahs’s powerpoint reminds viewers of the case in which a Belkin employee paid for positive Amazon reviews. Jeremiah approached this as a public relations disaster but I would like to remind companies that the legal implications are real for this kind of activity. The FTC has been vigorously enforcing its 2009 revisions to the Endorsement and Testimonial Guidelines. In March, 2009, Legacy Learning Systems, Inc. and its individual owner settled with the FTC for $250,000 over similar deceptive advertising. (See a description of that case here.) If companies want to avoid this legal exposure, they need to work with legal to develop policies and procedures for identifying and disclosing the material connections between endorsers and the products/services they are touting.

5. WHAT ARE COMPANIES DOING TO PROTECT SOCIAL MEDIA DATA? At slide 62, Jeremiah explains the most crucial advantage of social media, namely integrating social data into customer databases. Consumer data is the currency of social media, but the cost to companies is that they are responsible for safeguarding the data and maintaining its confidentiality. In November, 2011, the Online Internet-Based Advertising Accountability Program of NARC and the BBB released its first six compliance cases relating to behavioral advertising. In addition, the FTC and state Attorneys General continuously express their interest in protecting the privacy of consumers, and a multitude of federal bills are pending for “Do Not Track” and other privacy issues. Before companies start integrating social media data into their databases, they need to undergo a full legal and IT review of their privacy systems.

If you want to read the official report that was the basis for Jeremiah’s KM World speech, click here.



Responding to Breach of Employee Information Can Be Challenging

May 20th, 2011
in Employment & Benefits, Expert Guest Blog Entries, Telecoms & Technology |

Data Breach Legal WatchExpert Article by Theodore J. Kobus

Responding to breaches involving employee information can be challenging, primarily because the affected employees see other affected colleagues at the coffee station, in the lunch room, or even walking down the hallway.  Unlike most breaches, the affected employees have more opportunity to talk about a breach event with others affected.  Also, whether legitimate or not, employees have an unspoken expectation that their employer will protect their personal information.  We see call center rates and credit monitoring uptake rates in the 30-40% range following a breach involving employees which is much higher than what we see when the affected people are not employees.

The Federal Trade Commission (FTC) announced on Tuesday, May 3rd that it had reached a settlement with two companies involving the breach of information of almost 65,000 customer employees. Both settlements focused on allegations of inadequate security practices being in place.  The FTC looked at network security and password management policies in place.  No fine was issued, however, the companies involved will be subject to third-party security audits for 20 years.

In these cases, the employers were not the cause of the breach, but rather vendors used by the employer were involved. Still, employees expect that the companies their employer does business with will protect their information as well.  There have been 34 complaints filed by the FTC since 2001 arising out of inadequate protection of personal information.

There is a gold mine of personal information in Human Resource Departments and companies need to identity their vulnerabilities as they relates to data leakage.

  • Where is sensitive information being stored?
  • Who has access to the information?
  • Does the company have IT logs that can track that access?
  • Are policies and procedures in place to safeguard information?
  • Does the organization have a training program in place to protect the sensitive information it maintains?

Many of these may seem like common sense questions, but these are exactly the types of questions the regulators will ask following a breach.   Additionally, companies need to review their vendor contracts and make sure that the contracts reflect the current state of privacy and data security laws.  Some of you will be shocked to find out what you have agreed to in those old and dusty contracts. At the end of the day, when we are dealing with employee breaches, it does not matter who caused the breach because the employer will still feel the fallout.

Click here to read more articles from Theodore J. Kobus


Food & Beverage Marketing & Advertising

March 14th, 2011
in Advertising & Marketing, Regulatory & Compliance |

ACI: Advanced Legal Summit on Food & Beverage Marketing & Advertising

March 31-April 1 – Washington, DC


ACI is pleased to announce that several senior-level enforcement officials from the FDA and FTC will be speaking at ACI’s upcoming Advanced Legal Summit on Food & Beverage Marketing & Advertising.


Don’t miss this rare opportunity to gain firsthand insights directly from the government regarding current enforcement initiatives and the standards being applied to evaluate food and beverage marketing and advertising claims -

Mary Engle, Associate Director, Division of Advertising Practices, Bureau of Consumer Protection, FTC

Richard Cleland, Assistant Director, Division of Advertising Practices, Bureau of Consumer Protection, FTC

Kial Young, Senior Attorney, Division of Advertising Practices, Bureau of Consumer Protection, FTC

Jennifer Thomas, Director, Division of Enforcement, Office of Compliance, CFSAN, FDA

Vincent de Jesus, Nutritionist, Office of Nutrition, Labeling & Dietary Supplements, CFSAN, FDA

Kathryn L. Farrara, Staff Attorney, National Advertising Division


Take note as the FDA and FTC provide insights into how they are approaching key issues in food and beverage advertising and marketing as they speak on the following sessions –

Compiling Effective Scientific and Medical Evidence to Support Your Claim Substantiation

FDA & FTC Enforcement Priorities in Food Labeling and Advertising

Preparing for and Responding to Renewed Government Interest in Food Marketing to Children

Ensuring Compliant Front-of-Package Labeling

Knowing What Can and Cannot Be Said When Making Specific Food Product Claims

Understanding Current FTC Guidance on Endorsements and Testimonials


Specifically structured to focus in on the unique marketing and advertising challenges of the food and beverage industry, this conference will also provide you with the opportunity to benchmark with your colleagues at Yum! Brands, J.M. Smucker, Del Monte, Nestlé, Scripps Networks, General Mills, Herbalife and Coca-Cola as you learn what your company should be doing now to re-adjust its marketing and advertising practices in response to this new wave of FDA and FTC enforcement.


Full information on the summit can be found at


Drug Patents Expiring During the Next Two Years

December 7th, 2010
in Hatch-Waxman, Intellectual Property, Pharmaceuticals / Biotech / Life Sciences, Regulatory & Compliance |

Excerpt from

NEWTOWN, Dec. 3, 2010–With an abundance of pharma products going off patent during the next several years, M&As – like that between Pfizer and Wyeth – and joint ventures have become increasingly more common as companies seek to replace revenue loss associated with the impending patent cliff for their blockbuster products. Another primary strategy being employed is extending patent life through new dose ranges, unique methods of administration, and/or gaining approvals for new indications.

Patent-infringement litigation against generic drug manufacturers remains commonplace as branded drug manufacturers struggle to prevent rapid and severe loss of revenue associated with generic entry. However, some of these lawsuits are more often being settled using reverse payments known as “pay-for-delay” deals in which the generic company will agree not to launch a generic drug for a certain period of time in exchange for financial compensation from the innovator company. The Federal Trade Commission reports that these types of settlements cost American consumers $3.5 billion per year as they miss out on generic drug pricing that can be as much as 90% less than brand prices. In early July 2010, the U.S. House of Representatives approved a ban on patent agreements between brand-name and generic drug companies.
Get the full article at PharmaLive

Learn more on ParagraphIV with American Conference Institute. Now in its fifth year, ACI’s Paragraph IV Disputes conference has become the most trusted source for the ‘ins and outs’ of Paragraph IV litigation. This first and original conference of its kind serves as the litigation playbook for brand name and generic drug companies in the high-stakes arena of Hatch-Waxman litigation. The inherent intensity of Paragraph IV litigation has been magnified of late by the seemingly unending repercussions of the Hatch-Waxman reforms of the MMA, pending Patent Reform legislation, the approval of an abbreviated pathway for follow-on biological products and the threat of proposed legislation, which may make settlements of these matters near impossible — let alone illegal. These factors have all added to the complexity of this litigation, and have also raised the monetary ante to unprecedented heights. In this environment, it is imperative that brand name and generic pharmaceutical companies and their counsel, have the offensive moves and defensive plays that they need to meet the challenges of pharmaceutical patent endgame litigation.

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