SUMMER • 2019
Anticipating a Fight over “the Anticipation of Litigation” p8
Cybercrime and Insurance: The Key Issues p4
Nothing But Net: is the “Baseball Rule” About to Change? p2
Growing Pains: Employers Grappling with Marijuana in the Workplace p22
The scoop on the fda’s updated approach to the dietary supplement market p12
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ta b le o f
Nothing But Net: is the “Baseball Rule” About to Change?
By Joshua W. Praw • Murchison & Cumming LLP........................................................... page 2
Cybercrime and Insurance: The Key Issues
By Alan Rutkin, Robert Tugander, and Gregory J. Klubok • Rivkin Radler LLP................ page 4
One Fine Day? – No, three Fine Days!
By Jonathan Cornthwaite • Wedlake Bell LLP................................................................. page 6
Anticipating a Fight over “the Anticipation of Litigation”: Maximizing Work Product Protection When Defending Against Tort Claims in a Corporate Setting
By Eddy Silverman, Williams Kastner.............................................................................. page 8
Combatting Insurance Fraud with Technology
By Kent M. Bevan • Dysart Taylor Cotter McMonigle & Montemore, PC..................... page 10
The scoop on the fda's updated approach to the dietary supplement market
By Lindsey M. Saad and Elizabeth L. Taylor • Flaherty Sensabaugh Bonasso PLLC...... page 12
Preparing for daubert through the life of a case
By Ami Dwyer • S-E-A................................................................................................. page 16
A Fast-Moving Train Coming Into the Insurance Company Station? The Cybersecurity Model Rule for Carriers
By Molly Arranz and John Ochoa • SmithAmundsen................................................... page 20
Growing Pains: Employers Grappling with Marijuana in the Workplace
By Christina L. Lewis • Hinckley Allen.......................................................................... page 22
oz update: the new porposed regulations are out. New guidance on eligibility for OZ tax benefits
By Emily Meeker and Charlie Davis • Poyner Spruill LLP ............................................. page 24
Structured Settlements In Workers’ Compensation Claims: A Creative Approach To Settlement
By Rachel D. Grant, CSSC • Structured Financial Associates........................................ page 26
STORYTELLING IN THE AGE OF EMOJIS
By Adam Bloomberg • Litigation Insights ................................................................... page 28
From the Chair’s Desk................................................ page 1 Firms On the Move......................................................page 34 Faces of USLAW..........................................................page 36 Pro Bono Spotlight...................................................page 38 DIVERSITY COUNCIL RECRUITMENT FORUM.......................page 39 About USLAW .............................................................page 40 USLAW NETWORK SourceBook......................................page 43 Spotlight on Corporate Partners.............................page 47
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from t h e
Publisher Roger M. Yaffe Editor Connie Wilson Art Director Jeff Freibert • Compass Creative
BOARD OF DIRECTORS
Kevin L. Fritz, Chair
Lashly & Baer, P.C., St. Louis, MO
Dan L. Longo, Vice Chair
Murchison & Cumming, LLP, Irvine, CA
Kenneth B. Wingate, Secretary/Treasurer
I am pleased to share with you the inaugural issue of USLAW Magazine+. Since 2008, we have been printing USLAW Magazine each spring and fall but, starting with this issue of USLAW Magazine+, we now will also offer digital-only publications in the summer and winter. These complimentary publications and in-depth client resources offer industry,
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practice area and jurisdictional knowledge on a wide array of topics written by attorneys from our member firms plus our exclusive corporate partners.
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John D. Cromie, Immediate Past Chair Connell Foley LLP, Roseland, NJ
Lew R.C. Bricker, Chair Emeritus SmithAmundsen LLC, Chicago, IL
In this inaugural issue, you will read articles focusing on combatting insurance fraud through technology, the scoop on the FDA's updated
Rene Mauricio Alva
Larry A. Schechtman
Douglas W. Clarke
Jones, Skelton & Hochuli, P.L.C. Phoenix, AZ
EC Legal Rubio Villegas Ciudad Juárez, Chihuahua, México
approach to the dietary supplement market, employers grappling with
Therrien Couture L.L.P. Brossard, Quebec, Canada
marijuana in the workplace, opportunity zones, cybercrime, safety in
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the stands while enjoying America's pastime and so much more.
Strong & Hanni, PC Salt Lake City, UT
Merton A. Howard Hanson Bridgett LLP San Francisco, CA
Through this digital version, we have created an enhanced online reading experience, made it easy to connect with the authors and firms, and you now are just a click away from sharing the entire issue or any and all individual articles with family, friends, colleagues and your social networks.
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Pierce Couch Hendrickson Baysinger & Green, L.L.P. Oklahoma City, OK
SmithAmundsen LLC Chicago, IL
Phillip H. Stanfield
Thomas S. Thornton, III Carr Allison Birmingham, AL
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Martin, Tate, Morrow & Marson, P.C. Memphis, TN
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Wedlake Bell LLP London, United Kingdom
Robert S. Nobel Traub Lieberman Hawthorne, NY
Please enjoy this inaugural summer issue of USLAW Magazine+. Thank you for your support of USLAW.
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Sincerely, Kevin L. Fritz USLAW NETWORK Chair Lashly & Baer, P.C. | St. Louis, Missouri
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Nothing But Net: is the “Baseball Rule” About to Change? Joshua W. Praw
On May 30, 2019, Chicago Cubs outfielder Albert Almora Jr. hit a line drive 106.3 MPH down the third base line and foul into the stands of the Houston Astros’ Minute Maid Park.1 The ball took just 1.2 second to travel 158 feet where it struck a four-year-old girl.2 Paramedics rushed her to the hospital.3 Almora Jr. was visibly shaken up with tears in his eyes, and it took him a few moments to regain his composure and re-enter the batter’s box.4 After the game, Almora Jr. told reporters, “Right now, obviously, I want to put a net around the whole stadium.” Cubs All-Star third baseman and former MVP and Rookie of the Year, Kris Bryant, told reporters after the game, “Let’s just put fences up around the whole field.” This scary scene is not new to baseball. In 2017, a two-year-old girl was struck in the head by a foul ball at Yankee Stadium travelling 105 MPH causing multiple facial fractures. In 2018, a 79-year-old woman was struck in the head by
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a foul ball at Dodger Stadium and she died four days later from acute intracranial hemorrhage due to blunt force trauma. In fact, analysis at Bloomberg in 2014 estimated that as many as 1,750 fans per year are injured by foul balls at Major League Baseball (MLB) games (this figure does not include the thousands of Minor League Baseball, college baseball, and other amateur leagues such as high school and Little League games per year). With the heightened media attention, will we see changes to the Baseball Rule to force baseball stadiums to increase the safety for its fans? THE BASEBALL RULE The first safety net was erected behind home plate in 1879.5 The first reported decision for a foul ball liability case came in Missouri in 1913: Crane v. Kansas City Baseball & Exhibition Co.6 The same year, Minnesota decided another case: Wells v. Minneapolis Baseball & Athletic
Association.7 Together, these cases became the foundation for the Baseball Rule, which posited professional baseball teams are not liable for injuries sustained by fans hit by bats or balls leaving the field of play if the team implemented minimal precautions to protect them from harm.8 The Baseball Rule essentially holds stadium owners to a lower duty of care for the safety of fans compared to the reasonable duty of care owed by most property owners under the common business-invitee rule.9 Note that the Baseball Rule is different from the Assumption of Risk Doctrine. The Baseball Rule sets out the standard of care, while assumption of risk is an affirmative defense. The Baseball Rule lowers the standard of care for defendants who may ultimately win on a dispositive motion. Should the dispositive motion be defeated, the baseball stadium operator or team could then rely on the Assumption of Risk Doctrine in its defense of the claim.
BASEBALL HAS CHANGED BUT THE BASEBALL RULE DOES NOT REFLECT THAT CHANGE Baseball and baseball stadiums have seen tremendous change since the implementation of the Baseball Rule in 1913. Baseball players are bigger, stronger, and faster than ever before. Through June 3, 2019, MLB’s StatCast recorded 1,020 line-drive foul balls with exit velocities 100+ MPH so far in the 2019 season.10 Simultaneously, stadiums are shrinking the foul ball territory bringing fans closer to the game. Some calculations reveal fans today are sitting approximately 21% closer to the field than they were in 1920.11 While fans are closer to the field, baseball stadiums are encouraging fans to take their eyes off the game and onto their smartphones to post pictures to their social media accounts using stadium promoted hashtags (e.g. #ThinkBlue at Dodger Stadium), offering free WIFI,12 increasing the strength and speed of cellular data inside the stadiums,13 and showing flashy interactive sequences on the big screen TVs surrounding the field. With bigger, stronger players hitting harder foul balls into the stands that are closer than ever before while fans eyes are focused to their devices, MLB Commissioner Rob Manfred issued a recommendation to teams to extend their protective netting.14 By the start of the 2018 season, all 30 teams expanded netting to the dugouts on either side of the field.15 MLB acknowledges there is a problem. But is this enough to prevent change to the Baseball Rule? MLB hopes so. Meanwhile, in Japan, where baseball is the most popular sport, every team has netting extending from foul pole to foul pole and signs are posted in the stands that graphically warn of the danger.16 If a ball does clear the netting, ushers warn fans immediately with whistles and horns, something no MLB team does.17 To satisfy those fans interested in catching foul balls,
Japanese teams offer “exciting seats,” which are directly in the line of fire and each seat comes with a helmet and glove.18
Neil Greenberg, MLB’s Netting Dilemma: With Current Standards, Danger is just Seconds Away, THE WASHINGTON POST (June 5, 2019), https:// www.washingtonpost.com/sports/2019/06/05/ mlbs-netting-dilemma-with-current-standards-danger-is-just-second-away/?utm_term=.7cfa25808ce7. 2 Id. 3 Id. 4 Id. 5 J. Gordon Hylton, A Foul Ball in the Courtroom: The Baseball Spectator Injury as a Case of First Impression, 38 TULSA L. REV. 485, 485 (2003). 6 Crane v. Kan. City Baseball & Exhibition Co., 168 Mo. App. 301, 153 S.W. 1076 (1913). 7 Wells v. Minneapolis Baseball & Athletic Ass’n, 122 Minn. 327, 142 N.W. 706 (1913). 8 Matthew J. Ludden, Take Me Out to the Ballgame ... but Bring a Helmet: Reforming the “Baseball Rule” in Light of Recent Fan Injuries at Baseball Stadiums, 24 MARQ. SPORTS L. REV. 123, 124 (2013). 9 Id. 10 Neil Greenberg, MLB’s Netting Dilemma: With Current Standards, Danger is just Seconds Away, THE WASHINGTON POST (June 5, 2019), https:// www.washingtonpost.com/sports/2019/06/05/ mlbs-netting-dilemma-with-current-standards-danger-is-just-second-away/?utm_term=.7cfa25808ce7.
IS THE BASEBALL RULE ABOUT TO CHANGE? With the recent spate of fan injuries, increased media scrutiny, and a growing voice among players to keep fans safe, MLB may have no choice but to increase fan safety by expanding safety nets farther down the foul lines. However, does this mean the courts will also begin to change the Baseball Rule? It is unlikely we will see wholesale change to the Baseball Rule, but some jurisdictions are interpreting the Baseball Rule like never before. In 1997, a California Appeals Court allowed a claim against a minor league team, the Rancho Cucamonga Quakes, after a fan was struck by a foul ball while being distracted by the team’s mascot, Tremor.19 The court reasoned that mascots are not an integral part of the game and the team had a duty not to increase the inherent risks to spectators.20 Furthermore, the Court held that whether a baseball stadium increased the inherent risks is an issue of fact to be resolved at trial.21 In 2005, the New Jersey Supreme Court applied traditional tort principles to the Newark Bears, an independent league team, for a fan injured by a foul ball while he was walking on the concourse.22 That court drew a distinction between sitting in the seats and being anywhere else in the stadium. It held that as long as the fan is not in their seat, the proper standard of care is the business invitee rule and the stadium owner owes a duty of reasonable care.23 In 2010, a child’s head was hit by a foul ball at an Albuquerque Isotopes minor league game.24 The New Mexico Supreme Court adopted a “symmetrical” duty to be used for comparative negligence analysis.25 It held that a spectator must exercise reasonable care to pro-
Nathaniel Grow and Zachary Flagel, The Faulty Law and Economics of the “Baseball Rule”, 60 Wm. & Mary L. Rev. 59, 88 (2018). 12 Teena Maddox, Field of Digital Dreams: Why MLB is Betting its Future on Big Data, Wi-Fi, Apps, and AR, TECHREPUBLIC (October 26, 2017, 5:39 AM), https://www.techrepublic.com/article/field-of-digital-dreams-why-mlb-is-betting-its-future-on-big-datawi-fi-apps-and-ar. 13 Corey Moore, Dodger Stadium Gets $100 Million Makeover with Better Cell Coverage, Bathrooms and More, SOUTHERN CALIFORNIA PUBLIC RADIO (January 8, 2013), https://www.scpr.org/ news/2013/01/08/35558/dodger-stadium-getting-makeover. 14 Paul Hagen, MLB Recommends Netting Between Dugouts, MAJOR LEAGUE BASEBALL (December 9, 2015), https://www.mlb.com/news/mlb-issues-recommendations-on-netting/c-159233076. 15 Tom Schad, All 30 MLB Teams will Extend Protective Netting this Season, USA TODAY (February 1, 2018, 9:45 AM), https://www.usatoday.com/story/ sports/mlb/injuries/2018/02/01/mlb-teams-extend-protective-netting-season/1086019001. 16 Allen St. John, Does Japanese Baseball have the Answer for MLB’s Dangerous Foul Ball Problem?, FORBES (September 30, 2017, 9:51 PM), https://www.
tect themselves from inherent risks and the stadium owner/occupant must exercise ordinary care not to increase that inherent risk.26 Furthermore, state legislatures are legislating spectator safety too. The Colorado Baseball Spectator Safety Act of 1993 set forth the Assumption of Risk Doctrine is not a complete defense for stadiums if the stadium “fails to make a reasonable and prudent effort to design, alter, and maintain the premises of the stadium in a reasonably safe condition relative to the nature of the game of baseball.”27 CONCLUSION MLB is facing renewed challenges from fans, players, and the media to increase fan safety because of bigger, stronger, and faster players, fans sitting closer to the field, and a plethora of distractions encouraging fans to take their eyes off the game. With an average of 1,750 foul ball injuries per year, baseball stadium operators and insurers must plan for a future where the Baseball Rule is modified or abandoned, and fans can successfully bring tort claims. It is unknown when or if that day may come, but one thing is sure: players will continue to get stronger and faster, fan distractions will increase, and fans will continue to get injured by foul balls.
Joshua W. Praw is an Associate in Murchison & Cumming’s Los Angeles office. Josh’s practice focuses on commercial general liability, products liability, toxic tort, and business litigation. Josh may be reached at jpraw@ murchisonlaw.com
forbes.com/sites/allenstjohn/2017/09/30/doesjapanese-baseball-have-the-answer-for-baseballs-dangerous-foul-ball-problem/#11014709829c. 17 Id. 18 Id. 19 Lowe v. Cal. League of Prof. Baseball, 56 Cal. App. 4th 112, 65 Cal. Rptr. 2d 105 (1997). 20 Id. at 120. 21 Id. at 123. 22 Maisonave v. Newark Bears Prof’l Baseball Club, Inc., 185 N.J. 70, 73, 881 A.2d 700, 702 (2005). 23 Id. 24 Edward C. v. City of Albuquerque, 2010-NMSC-043, ¶ 1, 148 N.M. 646, 648, 241 P.3d 1086, 1088. 25 Id at ¶ 4. 26 Id. 27 COLO. REV. STAT. § 13-21-120(5)(a) (2012).
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Cybercrime and Insurance: The Key Issues Alan Rutkin, Robert Tugander, and Gregory J. Klubok
Cyberattacks are becoming more common each year. Hardly a month goes by without the hacking of a major company. First American Title Insurance Company is the latest victim of a major data breach. This past May, it revealed that more than 885 million customer records were exposed due to a security flaw. Cybercrime occurs in many forms. And criminals keep coming up with new and more sophisticated schemes to steal personal identities and funds. When a new risk emerges, new insurance coverage issues follow. Several complicating factors make this new area of insurance law look a little bit like the Wild West: (1) cybercrimes require courts to fit new technologies into old categories, (2) cyber claims involve new and different policy forms, and (3) computer fraud policies often involve factually in-
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tensive questions. Most cases revolve around one or more of the following issues: authorization, causation, act, or injury. AUTHORIZATION Typically, insurance coverage for cyberattacks is limited to losses caused by someone who was not authorized to use the policyholder’s computer system, i.e., hackers. In other words, the bad actor must have broken into the computer system. That is a higher threshold than using a computer; the bad actor must have broken into the computer system. That may seem like a fine distinction, but it really isn’t. Practically everyone knows how to use a computer, but few know how to hack into one. The perpetrator, therefore, must not be authorized to access the computer system. What about when an authorized person,
such as an employee or agent, uses a policyholder’s computer system to perform an unauthorized act? The policyholder is out of luck. Coverage is usually limited to losses caused by unauthorized users, and courts typically enforce this restriction, even where the authorized person was deceived.1 Unauthorized acts by authorized persons are simply not covered by most cyber policies. CAUSATION Causation is a tough concept in the cyber insurance field. Often, cybercrime involves a series of steps to complete the fraudulent scheme. One or more of these steps may entail the use of a computer, but not all. In the cyber insurance field, most policies have a qualifier: They only cover “direct loss” from the use of a computer. When is a loss direct? Different courts
have come to different conclusions, and there is no consensus. Some courts have held that the actual use of the computer must be, in effect, the final act to cause the loss. Other courts have equated direct loss with a proximate cause requirement, which is much more policyholder-friendly. A proximate cause means a substantial cause; it does not have to be the last act in the cyber scheme. And there can be more than one proximate cause. A proximate cause analysis is malleable, giving courts flexibility in reaching a desired outcome. An example is Medidata Solutions, which involved a fraudulent impersonation scheme.2 Employees were tricked into wiring money to a phony account by spoofed emails and phone calls. The court held that there was a direct loss, as the spoofed emails set in motion a chain of events that culminated in the fraudulent transfer. ACT Most coverage litigation in the cyber context has concerned whether there was an act within the policy terms. Spoofing, hacking, and publishing are some examples. Liability policies typically require that the injury-causing event be unintentional. They cover accidents, which, by their nature, are not intentional. Punching or shooting someone are classic examples of intentional conduct that is not covered, as injury necessarily flows from the act. In the cyber context, the policyholder is often the victim of a devious scheme designed to steal money or information. But the policyholder is sometimes liable for its own intentional cyber acts. A real-life example happened when a dentist sought coverage after she posted fake online reviews of another dentist and was sued for defamation.3 In another case, a policyholder, among other things, hacked an acquaintance’s computer.4 In both instances, there was no coverage because the acts were, rather plainly, committed intentionally. Some policies also provide coverage when a publication causes injury. Typically, a publication injury is one that defames someone, steals someone else’s ideas, or otherwise causes financial harm. There is a low threshold for publication in the cyber context: If it is available for online viewing, it has been published.5 But the policyholder must be the one who did the pub-
lishing. In one case, a hacker stole information from the policyholder and published it. The policyholder sought coverage as a publication injury. The court recognized that a wide-scale data breach was a publication. But there was no coverage because the policyholder did not publish the information; the hacker did.6 INJURY Policyholders have sometimes looked to their commercial general liability policies for coverage for cyber liabilities. Specifically, policyholders look to the personal and advertising injury, and property damage coverages. Property damage coverage typically applies to tangible property. In the cyber context, that raises an interesting question: Is data tangible? An early case drew a distinction between software, which is intangible, and the tangible hardware used to operate it (like the physical computer).7 Hardware, the court explained, merely reads the instructions given to it by software. Even if the intangible software is corrupted, the court reasoned, the tangible hardware can still perform as it is supposed to by reading the software’s instructions; the software is just sending bad instructions. “By analogy,” the court explained, “when the combination to a combination lock is forgotten or changed, the lock becomes useless, but the lock is not physically damaged.”8 But courts are split on this; in fact, one court held that software “has physical existence . . . and can be perceived by the senses.”9 Quite frankly, that reasoning doesn’t seem to make much sense. Personal and advertising injury coverage applies to certain offenses, including injury caused through the publication of material that violates a person’s right to privacy. In one case, computer tapes containing sensitive employee information fell out of a van and landed on a highway during transport. The tapes were not recovered. The court found this provision inapplicable because there was no evidence that anyone ever accessed the confidential information on the tapes.10 Turning to cyber policies, they typically require that the party making the claim against the insured be the one who actually suffered the privacy injury. In one case, hackers stole credit card information from a popular restau-
See, e.g., Aqua Star (USA) Corp. v. Travelers Cas. & Sur. Co. of Am., 719 F. App’x 701, 702 (9th Cir. 2018). Medidata Solutions, Inc. v. Federal Ins. Co., 729 F. App’x 117, 118-119 (2d. Cir. 2018); see also American Tooling Center Inc. v. Travelers Cas. & Sur. Co., 895 F.3d 455, 459-461 (6th Cir. 2018) 3 Anton v. Nat’l Sur. Corp., 2016 U.S. Dist. LEXIS 108011, at *19-*20 (S.D. Tex. 2016). 4 Todd v. Vt. Mut. Ins. Co., 137 A.3d 1115, 1122 (N.H. 2016). 5 Travelers Indem. Co. of Am. v. Portal Healthcare Solutions, L.L.C., 644 F. App’x 245, 247 (4th Cir. 2016). 6 Zurich Am. Ins. v. Sony Corp. of Am., 2014 N.Y. Misc. LEXIS 5141 (Sup. Ct., N.Y. Cty. 2014). 7 Am. Online, Inc. v. St. Paul Mercury Ins. Co., 347 F.3d 89, 95-96 (4th Cir. 2003). 8 Id. at 96. 9 Landmark Am. Ins. Co. v. Gulf Coast Analytical Labs, Inc., 2012 U.S. Dist. LEXIS 45184, at *10 (M.D. La. 2012). (quotation marks omitted); see also Eyeblaster, Inc. v. Fed. Ins. Co., 613 F.3d 797, 802 (8th Cir. 2010). 10 Recall Total Information Management v. Federal Insurance Co., 115 A.3d 458, 460 (Conn. 2015). 11 P.F. Chang’s China Bistro, Inc. v. Fed. Ins. Co., 2016 U.S. Dist. LEXIS 70749, at *14-15 (D. Ariz. 2016). 1 2
rant chain. An intermediary, who processed customers’ credit card payments for the restaurant, requested that the restaurant pay the penalties imposed by the card issuer following the breach. The restaurant sought coverage under its cybersecurity policy, which covered claims for privacy injuries. Under the definition of “privacy injury,” the person whose private personal information was accessed must have also sustained the complained-of injury. The claim was not covered because the service provider itself did not suffer a privacy injury. 11 CONCLUSION Cyber issues in the insurance context will continue to evolve, as the issues are fairly new. Complicating this body of law is the fact that different insurers use different policy language, and policyholders have sought coverage under various types of policies. A few trends, though, have emerged. Courts generally enforce clear restrictions on coverage when it comes to authorization and intentional misconduct. But policyholders typically win on publication issues. As technology advances and insurers refine their policy language, these coverage issues will become more commonplace, and courts will become more familiar with them. In the interim, it is important that both insurers and policyholders have experienced insurance counsel representing their interests in this new but growing field of insurance.
Alan Rutkin is a partner and long-time management committee member of Rivkin Radler LLP. He has written many articles concerning insurance issues in the cyber area. Robert Tugander is a partner in the Insurance Coverage Practice Group at Rivkin Radler, where he counsels insurers in complex coverage disputes. He has handled a wide array of insurance matters relating to environmental, toxic torts, intellectual property, and business tort claims. Gregory J. Klubok is an associate at Rivkin Radler LLP in the Insurance Coverage Practice Group. Before joining Rivkin Radler, Greg was a Senior Court Attorney at the New York Court of Appeals.
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One Fine Day? No,three Fine Days.
The multiple fines imposed on Google by the European Commission for anti-trust breaches Jonathan Cornthwaite
INTRODUCTION People love reading about over-mighty corporations receiving eye-watering fines from public watchdogs, especially at times when most other headlines are laden with doom and gloom. It is therefore no surprise that the three massive fines imposed on Google by the European Commission (“EC”) in the space of little more
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than twenty months for breaches of anti-trust law have attracted huge publicity, and resulted in many thousands of column-inches in the press, not just in Europe but around the world. Nothing quite like it has ever been seen before in the European Union (‘EU’), for the aggregate of those three fines exceeds the amount of any other financial penalty imposed by the EC in its
whole history, whether for competition law infringement or for anything else! But most of those press commentaries concentrated on the business-related aspects of the cases. In this article we focus more on the legal aspects of the EC’s decisions (‘the Decisions’) in order to see what can profitably be learned from them.
WHAT HAPPENED, IN A NUTSHELL? The first Decision was in June 2017, when the EC fined Google €2.4 billion for having given illegal advantages to its comparison shopping service called Google Shopping: the regulators found that Google had systematically given prominent placement to Google Shopping whilst, at the same time, demoting rival comparison shopping services in its search results. Little more than a year later the EC imposed an even higher fine, €4.34 billion, for a series of illegal practices by Google regarding the Android mobile devices – for example, bundling the Google search app and the Google Chrome browser, and obstructing the development and distribution of competing Android operating systems. And, only a few months ago, in March 2019, the EC imposed a third fine on Google of €1.49 billion in connection with its AdSense for Search contracts. Essentially, Google had imposed a number of restrictive clauses in contracts with third party websites that prevented Google’s rivals from placing their own search advertisements on those websites. WHAT WAS THE LEGAL BASIS FOR THE DECISIONS? Does this saga form part of an EC vendetta against the USA? Were the Decisions an excuse for more America-bashing? In fact, each of them was grounded on one of the principal planks of EU anti-trust law – specifically, Article 102 of the Treaty on the Functioning of the European Union (‘TFEU’), which prohibits the abuse of a dominant market position, and which has been copied by other EU member states (‘Member States’) in their respective domestic laws (for example, the United Kingdom’s Competition Act 1998 contains at section 18 an almost verbatim equivalent). Article 102 is probably the most fearsome weapon in the EC’s anti-trust arsenal for, unlike Article 101 of the TFEU (which prohibits anti-competitive agreements and practices), it can be infringed by purely unilateral conduct, and is subject to almost no exceptions. Furthermore, although the Article contains a list of four particularly heinous examples of abuse, that list is non-exhaustive only, which means that the prohibition is dangerously open-ended. And, as the Decisions demonstrate, a business does not need to be headquartered within the EU in order to be subject to the prohibition: any U.S. corporation whose markets include the EU or any part of it therefore needs to be well aware of it. The task of assessing whether a business has contravened Article 102 by having abused market dominance is a composite one, involving various steps that need to be taken in the correct order. The first is to identify the markets in question, and to decide whether the business under investigation is dominant in any of them. For example, in the Google Android case the EC came to the conclusion that there
were three relevant markets to be considered, namely the worldwide (excluding China) markets for: general internet search services; licensable smart mobile operating systems; and app stores for the Android mobile operating system. Step number 2 was to assess whether Google was dominant in any of the relevant markets, and (surprise surprise) the EC found dominance to have been established in all of them. One reason that contributed to that finding was the high entry barriers obtaining in them. But even had those barriers been lower, the likelihood is that dominance would still have been established, as a result of Google’s sky-high market shares, which exceeded 90% in various of the markets. But, infuriating though it may be to the competition, market dominance – even the extreme level of dominance wielded by Google – does not itself break the law. As the EC succinctly put it in its press releases on each of the Decisions, “[m]arket dominance is, as such, not illegal under EU anti-trust rules.” The problem, rather, occurs where that dominance is abused, which was the subject of the third and final step in the EC’s legal analysis. And that step was crucial, for the analysis uncovered multiple abuses, from demoting rival services, to obstructing the development of competing systems, to illegal tying and bundling, to granting financial incentives for the exclusive pre-installation of Google apps. Put together, the Decisions read like a textbook demonstration of how to drive a coach and horses through Article 102. QUANTUM? Some have commented that the quantum of the fines, huge though they were in absolute terms, was relatively small change for Google given that the assets of its parent company, Alphabet, are astronomical. But such comments overlook the EC’s power to impose further back-dated fines, in the event of Google’s non-compliance, of up to 5% of Alphabet’s average daily turnover. If the duration of that non-compliance were to be lengthy, the aggregate of those further fines could be such as to make even Google feel the pain. Having said that, Google may be troubled more by the bad publicity - abusing a dominant position isn’t entirely inconsistent with its corporate moto “Don’t be evil” – and (unless it successfully appeals against any Decision) by the need to alter its business model, for the Decisions oblige Google to cease and desist from its infringing practices. IN CONCLUSION? What lessons do the Decisions hold for U.S. businesses troubled by the potential risk of EU competition law? Firstly, it reminds us that one doesn’t have to be the size of Google, Intel or Microsoft to fall
foul of an abusive dominance allegation. The belief that it is only massive multinationals that really need to fear the Article 102 prohibition is erroneous…and dangerously so. They may not command banner headlines, but there is no shortage of cases in which organizations far smaller than Google have been found to have contravened Article 102 or its national equivalents. The only safe conclusion is that no business, great or small, can afford to disregard the consequences of abusing market dominance. Secondly, it reminds us that the potential consequences of infringement can be very severe indeed. The main sanction, of course, is fines. Hardly a month goes by without a swingeing fine being imposed by the EC and/or one of the Member States’ national competition authorities. But it is sometimes forgotten that the EC has other weapons in its armory as well, for, where it finds an infringement of Article 102, it is also empowered to impose a structural remedy or indeed any behavioural remedies that are proportionate to the infringement committed. The threat of using these powers has repeatedly induced those accused of abusive dominance to submit to binding commitments to (for example) sell business divisions to rivals, or to divest capacity to competitors. Thirdly, it needs to be remembered that a finding of infringement is increasingly likely to trigger “follow-on” legal proceedings for damages. In the past, victims of abusive dominance tended to be sluggish in seeking redress against the perpetrators in the civil courts, but that is changing, for companies and firms are showing themselves increasingly disposed to bring private enforcement actions; and Member States’ governments are strongly encouraging them to do so, stimulated by the EU’s Antitrust Damages Directive. And finally, the Decisions are a useful reminder of what a very important part anti-trust provisions play in EU business law. Anti-trust law was of course an American invention (it is generally taken to have begun with the Sherman Anti-Trust Act 1890), but since then we Europeans have, to put it mildly, proved ourselves ready, willing and able to adopt it, too. Whatever the outcome of the Article 102 proceedings, they demonstrate that the pupil has learned well from the master!
Jonathan Cornthwaite is head of Competition Law (a subject on which he advises, publishes and lectures with great frequency) at Wedlake Bell LLP, a firm of London solicitors at which he has been a partner for the last thirty years. He may be reached via email@example.com.
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Anticipating a Fight over “the Anticipation of Litigation”
Maximizing Work Product Protection When Defending Against Tort Claims in a Corporate Setting Eddy Silverman
There are few areas of the corporate-legal intersect more undervalued than the work product rule. THE ESSENTIAL DICTIONARY OF LAW defines work product as “documents, notes, memoranda, and other materials [a] prepared by an attorney as part of representing a client, [b] particularly in anticipation of litigation on a particular matter.” This is a fairly standard definition, and the one probably floating around in the head of the attorney erroneously telling you that this is all work product is, or can be. In reality, like effectively every other matter of legal interpretation, the answer to what work product is, is “it depends.” This arti-
cle advocates exploring whether work product protection is available in your case, but focuses primarily on setting up the attorneys and business professionals claiming such protection for success, while not losing sight of the fact that, at the end of the day, a mere claim may be all you need to make an inconvenient request go away. WORK PRODUCT: UNDERVALUATION, OR UNTIMELY VALUATION? Suggesting that exploring the applicability of work product is important is not the sort of “hot take” that is going to floor readers. Work product protection is one of those concepts you
cannot help but to run into early and often in practice. Similarly, business professionals involved in litigation assisting with that very first set of discovery responses are likely to become educated on work product quickly, and those paying attention are likely to just as quickly appreciate the importance of taking all the protection one can get. So maybe it is not entirely accurate to suggest that “undervaluing” work product is rampant—but companies are certainly not valuing work product quickly enough, and both companies and attorneys are too often drawing bright lines that do not exist in reality between (a) an
injury-causing incident, (b) a claim, and (c) litigation. It seems this oversight is grounded in the above-referenced, widely accepted definition of work product: documents, notes, etc., [a] prepared by an attorney [b] in anticipation of litigation. The problem with this definition is it is not necessarily correct, nor is it being defined pragmatically by the individuals and entities who may have a claim to such protection. “Well, I am not an attorney, and neither is my employee who gave me this statement about that lady slipping, and that lady didn’t seem that hurt…and she said she just wanted to fill out an incident report, so I guess we’re not really ‘anticipating litigation’….” Wrong. While most business professionals with prior litigation experience are probably already thinking “litigation” when an incident happens, to those who are not, you should be. Perhaps a better question is, if you are not “anticipating litigation” when an incident happens, why obtain statements? Why investigate? The obvious rebuttal is “I, employee, do these things because I have to”—company policy. Now certainly that policy is rooted in that favorite plaintiff ’s buzzword, “safety,” and perhaps more specifically in the interest of preventing similar incidents in the future. With safety and prevention in mind, it makes sense to investigate and report routinely. Rest assured, however, that attorneys wise to the discoverability of documents and items produced or created “in the ordinary course of business,” as opposed to “in anticipation of litigation,” will be quick to jump on these sorts of “routine,” “policy-based” rationales. This is where, again, businesses would be wise to think about the post-incident period pragmatically, and practically. The fact that certain areas of post-incident investigation and reporting are covered by, or addressed within company policies, or that actions are being undertaken routinely, with safety in mind, to prevent future incidents, does not “automatically” mean a company does not have a work product claim over those items. KNOW THE LAW (LAWYER AND CLIENT) Does it matter that you are not an attorney? Does one’s subjective “anticipation” of litigation, or mindset, generally, matter when he or she is collecting information after an incident? Why was that person collecting information— was it for claims professionals, to become part of a claim file? Is that claim file discoverable? What do the company’s policies and procedures say? Do the answers to any of the above questions even matter? I don’t know! That is for your attorney to know, and for you, business professional, to know too. It is fairly shocking how often attorneys on either side of the “v.” say
something utterly wrong with the air of absolute certainty. The point is: look for yourself. MAKE IT EASY – DO WHAT YOU CAN TO ESTABLISH A LEGITIMATE, STRONG WORK PRODUCT ARGUMENT Incidents are not particularly hard to identify. If there is a fall, a fight, or any sort of out-of-the-ordinary interaction of which the company, at some level, is aware, in this day and age there is the potential for litigation, and frankly you should be “anticipating” it. This may seem bleak, but the adage “better safe than sorry comes to mind” (as does the reference in the title of this article to “maximizing” work product protection, which, sorry to say, requires thinking this way). All types of business in different jurisdictions are wise to the utility of this sort of preemptive, yet defensive-minded thinking. For example, in Nevada, Ballard v. Eighth Judicial District Court, 106 Nev. 83 (1990), a motor vehicle accident case involving the discoverability of insurance claim files and the applicability of work product protection in that context, fundamentally changed how hospitals respond to medical cases with poor outcomes in that state (i.e., potential medical malpractice lawsuits). Post-Ballard, best practice in Nevada dictates calling affiliated counsel immediately to establish that attorneys are involved in, and directing and managing the post-incident investigation. This sort of move will almost certainly bolster a work product claim down the line. A FACIALLY VALID, DEFENSIBLE WORK PRODUCTION ARGUMENT MIGHT JUST BE ALL YOU NEED Fights in litigation take time and cost money, one way or another. Any attorney so strictly defining work product that he or she is opening the proverbial flood gates in discovery is doing his or her client a disservice. As far as the author is concerned, if it happened after an incident, it happened “in anticipation of litigation,” until proven otherwise. Now, facts are facts—those can almost never be protected— but when it comes to this person writing something, or that person providing a statement, these sorts of “products” should be looked at extremely closely, and the answer to a request on a first pass for any such item is almost always going to be no. This is not in any way an endorsement of unethical tactics, deliberate frustration of discovery efforts, or obfuscation. The “no” is founded in a legitimate, defensible belief that what is being requested was created in anticipation of litigation (particularly because the client knows how work product works, and had an attorney involved as early as possible in this hypothetical scenario). Opposing counsel
may disagree, but this is why most jurisdictions have meet-and-confer rules in place—so that attorneys can talk about those disagreements, and if one can prevail on the other, fine. Often though, the issue does not even get to that point. One simply does not provide documents and that is the end of it. Other times a meetand-confer happens, disagreement persists, but nothing further happens beyond that point. THERE IS INNATE VALUE IN THE FIGHT Even if the withholders end up relinquishing information over which they claimed protection, there is value in not giving it up easily. “Generosity in discovery” has a way of getting around. So one might say that precedent takes precedence, even where the battle is one that is likely to be lost, ultimately. KNOW WHEN TO HOLD ‘EM, AND WHEN TO FOLD ‘EM Like the great Kenny Rogers observed back in 1978, there comes a time when continuing the fight is futile. Whether because of client-aversion to the potential for sanctions, or the thought that producing the few documents for which counsel is asking is better than what a company might be compelled to produce if a decision goes awry, or for some other reason, there are times when, like in cards, it is better to fold. Holding and folding is not some static attorney-only discussion and determination. The client is the fundamental driver. It is the client, the business, the risk managers, the insurers, who have to weigh the risk against the reward. Do you continue to fight or do you let go? CONCLUSION There is great value in work product protection, and even in the mere assertion of such protection, but attorneys and their business clients would be wise to know the law in this area, and to move and react quickly, pragmatically, and practically. Happy withholdings!
Eddy Silverman is with Williams Kastner in Seattle, Washington, and focuses his work on medical malpractice defense, transportation defense, and personal injury defense. Eddy has a broad practice, with extensive courtroom experience advocating on behalf of his clients. He employs a holistic approach, and specializes in fashioning creative solutions for clients to effectuate positive results.
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Combatting Insurance Fraud with Technology Kent M. Bevan
The means to catch insurance fraudsters and prevent them from committing fraud in the first place have become more sophisticated with the ongoing development of technology. According to the Federal Bureau of Investigation, insurance fraud is the second largest criminal enterprise behind narcotics trafficking. It costs the average U.S. family $400 to $700 per year in the form of increased premiums. The Coalition Against Insurance Fraud (CAIF) says that all in-
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surance fraud costs nearly $80 billion per year. And it comprises nearly 10 percent of property-casualty insurance losses and loss adjustment expenses each year. The PILR or property insurance loss register has been around for decades and has been helpful to the industry in exposing patterns and algorithms of fire losses. Examinations under oath have likewise been in the “Duties in the Event of Loss” sections of insurance policies for a long time. But insurance fraud doesn’t
sleep and is constantly evolving and taking on new form. According to a 2018 survey by the CAIF, for the third consecutive time in six years, insurers report increasing amounts of suspected fraud. Nearly three-quarters of insurers say fraud has increased either significantly or slightly, an 11-point increase since 2014. Another recent study by the CAIF showed that 61 percent of auto insurance companies reported that fraudulent claims increased significantly in the past three years.
Part of the problem stems from the increasing proliferation of digital technology in the insurance industry. As insurers develop online solutions for their customers, they must also contend with an increase in cases of digital fraud. This includes the activities of fake or rogue brokers, fraudulent providers, organized criminals, and dishonest customers. The types of digital fraud these bad actors engage in includes, but is not limited to: • Submitting consumer claims to generate high volumes of fake or padded bills against those claims. • Hacking a customer’s online account or stealing their identity to intercept claim or premium return checks. • Orchestrating or staging accidents or other types of fraudulent claims. However, technology can also provide solutions for catching fraudsters or preventing fraud before it happens. In fact, much of the fraud-prevention technology developed for the financial services industry is now being implemented successfully in the insurance industry. This includes Big Data and Artificial Intelligence processes such as: • Predictive analytics and modeling – Using previously identified patterns of behavior to look for potentially fraudulent claims. • Link analysis – Mapping relationships between all the players involved in an insurance claim to identify patterns of fraud and fraud rings. • Text mining – Monitoring online behaviors such as social media posts and website engagement to detect fraud. • Data visualization – Organizing massive sets of insurance data into charts and graphs to visually demonstrate patterns of fraudulent behavior. • Geographic data mapping – Identifying insurance fraud rings that operate in the same geographical vicinity. These tools can detect and identify devices, locations, and behavior patterns linked to suspicious claims and flag them for follow up. They can also identify suspicious new policy applications and alert carriers to prevent the policies from being bound. These technologies are highly effective at undermining insurance fraud and reduce the time and resources insurers spend combating fraud. “Part of the zeitgeist among insurers today is low-touch or no-touch claims processing,” says James Quiggle, director of communications at the Coalition Against
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Insurance Fraud, an industry group. “More and more insurance companies are looking toward machines to help deal with often basic scams, thereby freeing up investigators for more complicated aspects for investigations that only humans can handle.” Based on studies by Quality Planning, the return-on-investment for fraud solutions can range from 6-20:1. In addition, implementing anti-fraud technology might also be a legal requirement as 22 states plus Washington D.C. have mandated that carriers implement anti-fraud programs. “You can’t not do it–this is kind of part and parcel of modern insurance,” says Jim Guszcza, U.S. chief data scientist at Deloitte Consulting. “You can’t not have machine learning (artificial intelligence) and predictive analytics for claims.” Current implementation of fraud technology in the insurance industry is a mixed bag. A 2017 TransUnion study found that 57 percent of insurance executives said they had no point of sale fraud tools to support growing online and mobile channels, and 18 percent were uncertain whether they did. But, according to a 2018 CAIF survey, nearly 75 percent of insurers have fully integrated technology into their anti-fraud systems. Insurers can plan and implement their own tech-driven fraud prevention strategies by following these steps: 1. Identify your goals – These can include addressing issues such as checking claims for fraud without affecting processing times; identifying fraud before a claim is paid; and tracking evolving fraud behaviors. 2. Quantify the level of fraud potential for each claim – Start with the claims which have the greatest potential for fraud and then work outwards to the ones that have the least. This way, you’ll ensure you’re making the most efficient efforts possible. 3. Determine the best technology solutions for your company – There are many anti-fraud tools and solutions available for different lines, claims, and policies. Work with vendors who’ll provide solutions that address your issues specifically. Such tools include: a. Galaxy.AI - An artificial intelligence system that appraises vehicle images and data for insurance companies and their policy holders. Its AI algorithm can later determine if accident images and the cost claimed by the client correspond.
b. Hanzo – Software that insurers can use to pull and sift through data from social media, marketplace sites like eBay and Craigslist, and elsewhere on the web in researching claims. c. FRISS – A platform that automatically detects insurance fraud before claims are paid using automated business rules, self-learning models, and predictive analytics.
4. Adopt a layered approach – It’s best if you use layered technologies that overlap one another to create redundancies in your fraud detection efforts. This will ensure that fewer fraudulent claims slip through the cracks. 5. Continuously monitor results – Success in combating insurance fraud comes from consistently examining all aspects of potentially fraudulent behavior. This means that your anti-fraud strategy must be analyzed and optimized on an ongoing basis. 6. Hire and train the best people possible – One aspect of tech-driven anti-fraud technology that’s often overlooked is the human element. However, only by hiring people with integrity and arming them with the tools and knowledge they need to spot and prevent fraud will you increase your chances of success. Insurance fraud was, is, and will continue to be a big business for those with nefarious motivations. However, if insurers use the technology tools at their disposal to fight fraud, then they have the potential to seriously undermine those who’d take advantage of the system. Technology might not solve the problem of fraud entirely, but it can certainly help.
Kent M. Bevan is Of Counsel at Dysart Taylor Cotter McMonigle & Montemore, PC in Kansas City, Missouri. His practice focuses on insurance law and litigation. Kent regularly writes alerts with analyses of recent court decisions involving insurance litigation which you can view at https://www.dysarttaylor.com/newsevents/alerts. You can view his expanded bio at https://www.dysarttaylor.com/our-people/kent-mbevan or contact him at firstname.lastname@example.org.
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The Scoop on the FDA’s Updated Approach to the
Dietary Supplement MarkeT Lindsey M. Saad and Elizabeth L. Taylor
If you are like many people, before reaching for your first cup of coffee you might reach for your multi-vitamin. While most people may pat themselves on the back for adding some extra calcium or glucosamine to their diet, they may be unaware that these dietary supplements are not subject to the same regulations as drugs or devices. The Dietary Supplement Health and Education Act (DSHEA) provided the U.S.
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Food and Drug Administration (FDA) with authority to regulate dietary supplements in 1994. Since that time, the dietary supplement industry has grown exponentially and is now worth more than $40 billion dollars and is comprised of over 50,000 products. With the supplement market growing rapidly, the FDA has recently taken action to increase the level of oversight for these popular consumables.
First you may ask, what is a dietary supplement? The DSHEA defines the term “dietary supplement” to mean a product intended to supplement the diet that bears or contains one or more of the following dietary ingredients: a vitamin, a mineral, a herb or other botanical, an amino acid, a dietary substance to supplement the diet by increasing the total dietary intake, or a concentrate, metabolite, constituent, ex-
tract, or combination of any of the aforementioned ingredients.1 This definition is key as the FDA’s new focus is on ingredients that do not meet this list of criteria. The FDA does not have the authority to review dietary supplement products for safety and effectiveness before they are marketed. This means that the seller or manufacturer does not have to prove that the product’s claims are accurate or truthful before the supplement can be sold. Unlike drugs, supplements are not permitted to be marketed for the purpose of treating, diagnosing, preventing, or curing diseases. All responsibility for safety prior to going to market falls upon the manufacturers and distributors of dietary supplements. Only if a supplement contains a new ingredient must the manufacturer notify the FDA prior to marketing the supplement. At this point, the notification is reviewed by the FDA for safety, but not effectiveness. One of the key safety responsibilities of the FDA is the review of reported serious adverse events by supplement companies and voluntary adverse event reporting by consumers and health care professionals. The FDA also reviews product labels and other product information, such as package inserts, accompanying literature, and Internet promotion of supplements, as resources allow. With the FDA’s history of a seemingly limited role regarding supplements, you may wonder why the FDA is taking a more active role now. A review of the recent warning letters gives a better perspective of the FDA’s new focus. On February 11, 2019, the FDA posted twelve (12) warning letters and five (5) advisory letters to companies that were selling products as dietary supplements that claimed to prevent, treat, or cure Alzheimer’s disease and other serious health conditions. Because the supplements are actually unapproved new drugs or misbranded drugs that have not been proven safe and effective to treat the specific diseases and illnesses advertised, the FDA is focusing its efforts to protect the public from these false claims. To make the point clear, when the FDA issued the warning and advisory letters in February 2019, the FDA Commissioner, Scott Gottlieb, M.D., also issued a statement, identifying a concern that “changes in the supplement market may have out-
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paced the evolution of [the FDA’s] own policies and [the FDA’s] capacity to manage emerging risk.”2 The FDA has three priorities when it comes to dietary supplements: to ensure safety, to maintain product integrity, and to foster informed decision-making. With those priorities in mind, the FDA announced in February 2019 several new steps to help achieve its goals of balancing the consumers’ access to supplements while protecting the public from unsafe and unlawful products and, at the same time, holding those accountable who fail to comply with the legal requirements. The first step involves “communicating to the public as soon as possible when there is a concern about a dietary supplement on the market.”3 In this respect, the FDA is developing “a new rapid-response tool to alert the public so consumers can avoid buying or using products” with an unlawful or potentially dangerous ingredient, and “to notify responsible industry participants to avoid making or selling” supplements with unlawful or dangerous ingredients.4 The second step is focused on ensuring that the FDA’s “regulatory framework is flexible enough to adequately evaluate product safety while promoting innovation.”5 This includes encouraging the submission of new dietary ingredient (NDI) notifications and updating the FCA’s compliance policy regarding NDIs. The third step is tied to the close work between the FDA and its “partners in the industry to achieve [the] primary goal of protecting public health and safety.”6 In this respect, the FDA created the Botanical Safety Consortium, which is a public-private partnership comprised of individuals from industry, academia, and government who will work together in evaluating not only the safety of botanical ingredients, but also the mixtures in dietary supplements. The fourth step involves developing new enforcement strategies to ensure the protection of the public health. In this respect, the FDA has made its “internal processes more efficient for taking enforcement action when products claiming to be supplements contain unlawful ingredients, including drug ingredients.”7 The fifth and final step centers around public dialogue and engaging the public to gain feedback from dietary supplement stakeholders. This includes looking
Dietary Supplement Health and Education Act of 1994 https://www.fda.gov/news-events/press-announcements/statement-fda-commissioner-scott-gottlieb-md-agencys-new-efforts-strengthen-regulation-dietary 3 Id. 4 Id. 5 Id. 6 Id. 7 Id. 1 2
into whether DSHEA and its existing laws should be modernized. In addition to the above steps, the FDA also reestablished the Dietary Supplement Working Group, which is made up of representatives from several centers and offices across the FDA. The Dietary Supplement Working Group has been tasked with identifying opportunities to modernize the FDA’s oversight of dietary supplements by a review of its organizational structures, processes, procedures, and practices currently in place. Although the changes to the FDA regulatory framework are not necessarily new or surprising, the agency has made it clear that it will be focusing on enforcement and modernization of the rules and regulations when it comes to dietary supplements. We can expect that dietary supplement companies may face a closer review of labeling, dietary ingredients, and the purported benefits of the supplements. As attorneys, we can advise our clients to stay ahead of this regulatory review by proactively taking steps to make sure that their products are in compliance. The next time you pop your multi-vitamin, think about how you can work with your dietary supplement clients to avoid being the target of the next warning letter or class action. – This article appeared in the May 2019 IADC Drug, Device and Biotechnology Committee Newsletter
Lindsey M. Saad is a member practicing in Flaherty Sensabaugh Bonasso’s Morgantown, West Virginia, office. Lindsey has a broad practice that includes defending cases involving drugs and medical devices, professional liability, product liability, transportation and complex personal injury and wrongful death claims. She can be reached at email@example.com or (304) 225-3052. Elizabeth L. Taylor is a member of Flaherty, practicing in its Charleston, West Virginia, office. Elizabeth concentrates her practice in civil litigation, particularly in the defense of drug and medical device manufacturers as well as automotive and industrial equipment manufacturers in serious personal injury and wrongful death cases. She can be reached at firstname.lastname@example.org or (304) 347-4217.
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– This article first appeared in the DRI publication “For the Defense (FTD)” in 2017 –
Are You Up to the Challenge?
PreparingforDaubert throughthelife ofacase Ami Dwyer
Expert witnesses perform a critical role in American litigation. Often the mechanism by which complex scientific and technical evidence is presented and proven, expert witnesses conduct the analyses used to convince a judge or a jury of the merits of a defense. In addition to providing testimony used in court throughout the life of a case, expert witnesses can collaborate with attorneys on case strategy and evaluation, and prepare attorneys to conduct targeted, effective discovery. Without an expert witness, a party may be unable to communicate effectively with a trier of fact whose knowledge of the scientific or technical issues is limited. For this reason, a thoughtful strategy for retaining and working with an expert – with an eye at the outset on the challenges that may be raised down the line – is critical. The penalties for failing to produce an expert whose testimony is reliable from a scientific or technical standpoint can be fatal to a party’s defense. Therefore, it is of the utmost importance to select an expert with the appropriate background, assure that the scope of the expert’s work is tailored to the expert’s area of expertise, and consider that the scrutiny that the court—
as the gatekeeper for expert witness evidence—is considered at every stage of the litigation. Meticulous attention to these considerations throughout the lifecycle of a case can prevent a Daubert challenge from derailing critical evidence at trial time. THE STANDARD: FRYE, DAUBERT, KUMHO, AND JOINER The modern history on the use of expert witnesses is a history of focused effort by courts and legislators to eliminate the proliferation of “junk science” in litigation – that is, testimony of “experts” peddling opinions not based on sound scientific principles. In the early twentieth century, these efforts to control the type of testimony being brought to court culminated with the case of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), a case where the defendant, James Frye, was found guilty of murder. On appeal, the defendant argued that the court committed error by failing to allow the introduction of a lie detector test taken of Mr. Frye. The impact of the appellate court’s opinion in Frye was a shift in standard for the admissibility of expert testimony from a mere evaluation of the expert’s creden-
tials. The “Frye” standard, or, “general acceptance” test, as it came to be known, required that a court evaluate whether the scientific technique used was generally accepted as reliable in the relevant scientific community as the basis for evaluating whether expert testimony would be permitted. In the case of Mr. Frye, the court concluded that the test had not yet gained the required scientific recognition in its field to justify the admission of the test results as expert testimony. Although the Frye standard stood the test of time, it failed to account for circumstances where there was a technique or methodology that could produce reliable results, but was too new, novel, or narrow a field for it to have gained acceptance in a scientific community. Seventy years after Frye, those considerations were, at long last, considered by the Supreme Court. In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the Supreme Court held that the standard for admissibility of expert witness testimony set forth in Frye was superseded by the Federal Rules of Evidence. This ruling addressed the growing concerns that the Frye standard was too restrictive in that it failed to distinguish ad-
Meticulous attention throughout the lifecycle of a case can prevent a Daubert challenge from derailing critical evidence at trial time.
equately between “junk science” and “new or novel” scientific or technical advances. Although the current standard for admissibility of expert testimony is set forth in Daubert, two subsequent U.S. Supreme Court cases, General Electric v. Joiner, 522 U.S. 136 (1997), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), round out the leading authority on the subject. In Joiner, the Court expanded on the concepts set forth in Daubert, noting that while Daubert emphasized the court’s role in evaluating the methodology used— rather than on the accuracy of the expert’s opinion—and concluded that the expert opinion must also correlate with supporting data, such that there is not an excessive analytical gap between the data and the offered opinion. Joiner additionally established that abuse of discretion is the standard of review for such evidentiary rulings. The Court in Kumho broadened the range of experts that the standards set forth in Daubert covered by including technical and other areas of specialized knowledge. These cases, in combination with the Federal Rules of Evidence, are the backbone of any analysis of expert testimony in federal courts. Federal Rule of Evidence 702 sets the standard for allowing expert evidence referenced in Daubert. In addition to the federal courts, many state courts have adopted this standard, although some state courts continue to adhere to the Frye standard. RULE 702 PROVIDES: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: a) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; b) the testimony is based on sufficient facts or data; c) the testimony is the product of reliable principles and methods; and d) the expert has reliably applied the principles and methods to the facts of the case. Based on Rule 702, the first requirement is that the witness be “qualified as an expert by knowledge, skill, experience,
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training, or education.” Once that threshold is met, the witness may provide opinion testimony if his testimony is relevant (will aid the trier of fact) and is reliable (based on sufficient facts, data, and reliable methods). These rules, in combination with guidance from Daubert, establish the basis upon which the court administers its role as the “gatekeeper” — to prevent the admissibility of expert evidence with inadequate methodology or objective evidence. The Court in Daubert also weighed in to provide a nonexhaustive list of factors for a court to consider when evaluating the reliability prong of admissibility. That list included the following factors, which were intended by the Court to be flexible: • Whether the theory or technique has been scientifically tested; • Whether the theory or technique has been subject to peer review or publication; • The expected error rate of the technique used; and • Acceptance of the theory or technique in the relevant scientific community. In presenting these factors, the Court clarified that the list was not intended to be exclusive, nor is any one factor dispositive, on the issue of admissibility. Thus, the court’s role as gatekeeper is to weigh the factors, along with any other factors that may be relevant, to evaluate the reliability of the methods, and therefore, the admissibility of the expert evidence. The commentary in the rules notes an additional list of factors identified by other courts in their analysis of the reliability of expert evidence. Those factors include: • Whether the expert’s testimony arises from independent research, or from opinions developed for that litigation; • Whether the expert has reached his or her conclusion by unjustified extrapolation from an accepted premise to an unfounded conclusion; • Whether obvious alternative explanations are accounted for; • Whether the expert is applying the same intellectual rigor as an expert in the relevant field; • Whether the field of expertise claimed is known to reach reliable results. In addition to restating some previously listed factors, Texas state courts have
further added to the body of factors that a court might consider in evaluating the admissibility of expert evidence. Those factors include: • Whether the theory has been (or can be) tested; • Whether the technique relies on subjective interpretation by the expert; and • Whether the theory has been subject to publication and/or peer review. It should be noted that the Court in Daubert concluded that the focus of the analysis is on principles and methodology, not the conclusions reached. Although the methodology and conclusions are not completely distinct from one another, subsequent caselaw explains that the court is obligated to evaluate whether the principles and methods have been properly applied to the facts in each case. This does not include, however, an evaluation of whether the opinion is correct. PREPARING TO MEET THE CHALLENGE Facing a Daubert challenge is highstakes motions practice. Since the exclusion of an expert from trial can be fatal to a defense, using appropriate expert selection methods and engaging in thorough preparation for the expert based testimony with an eye on the Daubert factors may discourage a Daubert challenge in the first place, or clear the path for a successful defense to any such challenge. Beating back the issue before it is raised should be part of every litigation strategy from the earliest point of identifying an expert to testify, all the way through the litigation process. Despite meticulous planning and preparing, a Daubert motion may still be part of an opposing party’s litigation strategy. In the event that a motion is filed, it is critical to provide your expert with a copy of the motion, and actively engage your expert in the process of framing a response to the motion. The expert is the individual in the best position to detail the methods and analysis performed for inclusion in an opposition. Additionally, the expert will no doubt be asked to address the methodology, either in a hearing on the motion, or in subsequent cross- examination. Having played an active role in framing the response, the expert will be better able to present a clear, consistent
These rules, in combination with guidance from Daubert, establish the basis upon which the court administers its role as the “gatekeeper” — to prevent the admissibility of expert evidence with inadequate methodology or objective evidence.
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argument defending the reliability of the proposed testimony. KNOWLEDGE, SKILL, EXPERIENCE, TRAINING, AND EDUCATION A well-planned strategy for avoiding a Daubert challenge begins with the selection of the expert witness. When choosing a witness, first evaluate whether the expert witness has the requisite knowledge, skill, experience, training, and education to opine on the issues you intend to have the witness address. While it is ideal to be able to meet each of these factors, note that Federal Rule 702 states “knowledge, skill, experience, training, or education” (emphasis added). Thus, where a witness may be the appropriate expert for a case, if the expert lacks one of the bases listed, be prepared to articulate how, for example, the expert’s training and experience is relevant to their expertise in an area, while a degree (education) is not. Once assured that the expert has the appropriate background, consider that the expert will be answering questions about his or her knowledge, skill, experience, training, and education in a deposition, and perhaps before a judge at a motions hearing. Prepare a thorough explanation of how the expert obtained his or her knowledge, skill, and experience, and its relevance to the analysis performed. Identify all the experience, training, and education, whether it is degree based, certification based, or single continuing education classes, even if that information is not contained in the expert’s CV (such as lifelong hobbies or a family business). SCOPE While the word “scope” does not appear in the language of Rule 702, assuring that a defined, appropriate scope of work and analysis is identified for the proposed expert evidence is critical to the ultimate success of the witness in a Daubert challenge. The scope of the analysis sought ought to be tailored not just to the case, but also to the actual knowledge, skill, experience, training, and education of the expert. Care should be taken that the expert’s testimony remains within the scope of his or her expertise. An expert could easily face
a Daubert challenge triggered by the expression of an opinion outside his or her area of knowledge, despite most of the opinions falling within his or her expertise. A careful review of each opinion expressed before the report is generated, to assure that the opinions do not stray, should be undertaken to avoid the risk that an opinion on a tangential issue, outside the scope of the expert’s specialty, is not the trigger for a challenge. The issue of scope can be particularly problematic in state court proceedings, where the expert disclosure requirements may be less stringent than those under Federal Rule 26. In those situations, opinions documented by counsel in an expert witness disclosure may not have faced the same scrutiny by the expert as a peer reviewed report. Assuring that the expert witness disclosures have been reviewed by the expert for conformity to the actual expertise the expert has, the opinions held, and the bases therefore, can be essential to avoiding problems with the disclosure down the road. As addressed in more detail below, in federal court, the issue of scope can be a minefield of another sort due to the detailed disclosure requirements of Federal Rule 26. THE PITFALLS OF AN INADEQUATE RULE 26 DISCLOSURE The federal rules, and most state court rules, have stringent requirements regarding the disclosures for expert witness testimony and evidence. Federal Rule 26 requires the disclosure of a substantial amount of information from the parties with respect to expert opinions, including, in most cases, signed, written reports disclosing “a complete statement of all opinions the witness will express and the basis and reasons for them,” and “the facts or data considered by the witness in forming them.” According to Rule 26, the report must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them;
(iv) the witness’s qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case. In preparing to produce an expert report and the required disclosures, care should be taken that the opinions, the bases and reasons for them, and the facts and data considered by the witness in forming them are disclosed, as required by the rule. In so doing, consideration of the reliability foundation that is required by the Daubert standard should be included so that the disclosure does not limit the expert from testifying as expected. The penalties for failing to make the disclosures required by the rule in full, or in part, can be catastrophic. A court may preclude the expert entirely, limit the opinions permitted, or limit the basis for an opinion for failure to disclose properly under Rule 26. Considering the importance of expert testimony in proving a defense, and the expense incurred in developing such testimony, parties need to be meticulous that they are developing opinions and disclosing opinions that can face the scrutiny of the court later. Should a court exclude an opinion or the basis for an opinion due to a shortcoming in the disclosures, it could have the additional consequence of affecting a party’s ability to defend the reliability of the methods used and analysis performed in a Daubert challenge. When the time for a Daubert challenge arises, having failed to establish the basis for the opinions (that may include principles and methodology) and the facts and data used in reaching those conclusions, the opportunity to disclose them in defense of a Daubert challenge may not be permitted. Planning throughout the life of the case to assure that all key Daubert factors are addressed in sufficient detail in the report (or, in the event no report is required, in the disclosures) assures that the discovery requirements of Rule 26 are met, and the Daubert factors can be explained.
When choosing a witness, first evaluate whether the expert witness has the requisite knowledge, skill, experience, training, and education to opine on the issues you intend to have the witness address.
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FACING THE GATEKEEPER: RELIABLE PRINCIPLES AND METHODS, RELIABLY APPLIED While it is essential to assure that the knowledge, skill, experience, training, and education requirement is met; the scope is appropriate; and the Rule 26 disclosures are adequate; that is not always enough to avoid a Daubert challenge. When a Daubert challenge is made, the court asserts its role as the gatekeeper to evaluate the admissibility of the evidence under Federal Rule 702, using the standards set forth in Daubert and its progeny. In evaluating any Daubert challenge, the court will seek to confirm that the expert used reliable principles and methods, and that those principles and methods were reliably applied. This is distinct from a critique of whether the opinions and conclusions reached by the expert are correct or credible (which is the function of a trier-offact), and instead a focus on whether the analytical gap between the data and opinions is too great to provide for the required reliability of the expert’s testimony. To that end, in accordance with Daubert, the factors the court should consider include the following. HAS THE THEORY OR TECHNIQUE BEEN SCIENTIFICALLY TESTED? The disclosures made by counsel and experts should set forth the methodology used, as well as any data or metric that the court may need to evaluate the reliability of the procedures used by the expert, perform its analysis, and reach its opinions. If the methodology is one with a long and deep history in the relevant field, or in mathematics, or science, the methodology is likely to be considered by the court to be reliable. HAS THE THEORY OR TECHNIQUE BEEN SUBJECT TO PEER REVIEW OR PUBLICATION? A classic hallmark of reliability is whether the technique or methodology used by the expert has been subject to the scrutiny of the scientific community, either by publication in a reputable journal, or by otherwise made subject to peer review. While this question is not suitable for all
theories, as not all methodologies and techniques have been subjected to peer review and publication, those that have successfully been have faced a time-tested industry standard for reliability are likely to be considered by a court to be reliable. WHAT IS THE ERROR RATE FOR THE TECHNIQUE USED? Technical and scientific communities often identify an error rate for scientific techniques and methodologies. While Daubert does not require a specific numerical error rate be assigned to any methodology used, the thrust of this inquiry is to evaluate whether a suitable theory has been applied, suitable methodology used, and whether they have a level of accuracy that makes the methodology appropriate for meeting the reliability standard that the court seeks from the expert testimony. Thus, where appropriate, some effort should be taken to quantify the likelihood that the expert’s opinion will be wrong, based on the use of the stated methodology. In the alternative, some courts have considered the related question of whether there is a basis to eliminate other opinions and conclusions that could be reached, akin to the use of a differential diagnosis to reach a conclusion. This inquiry should not be confused with an evaluation of the correctness of the expert’s opinions—but rather whether a suitably reliable methodology was used to reach the conclusions. HAS THE THEORY OR TECHNIQUE BEEN ACCEPTED IN THE RELEVANT SCIENTIFIC COMMUNITY? The question of whether a theory or technique has been accepted in the relevant scientific community is a throwback to Daubert’s predecessor, the Frye standard. Rather than the nuanced evaluation encouraged by Daubert, Frye focused wholly on the acceptance in the community of the standard used by the expert. Yet, under Daubert, wide-spread acceptance of a theory remains an important factor for the court to consider when assessing the reliability of the evidence.
OTHER FACTORS The enumerated Daubert factors remain the nonexclusive way for a court to establish that expert testimony is reliable. Different industries and fields may require different approaches to the question of reliability, which a survey of caselaw postDaubert demonstrates quite clearly. Other courts have found that indicia of reliability may include whether the expert’s testimony arises from independent research or from opinions developed for that litigation; whether the expert has reached his or her conclusion by unjustified extrapolation from an accepted premise to an unfounded conclusion; whether obvious alternative explanations are accounted for; whether the expert is applying the same intellectual rigor as an expert in the relevant field; and whether the field of expertise claimed is known to reach reliable results. Additionally, evaluating whether the theory can be tested, and whether the techniques rely on subjective or objective interpretation could be factors used by a court when performing its Daubert functions. Regardless of the technical specialty, considerations of how to establish the reliability of an expert’s analysis and opinion should be a part of each aspect of discovery. Advance thought and preparation to address the factors set out in Daubert, or the applicable state court standard, to demonstrate clearly the reliability of the methodology used by the expert throughout the life of a case can avoid serious and expensive consequences.
Ami Dwyer is General Counsel for S-E-A. Prior to joining S-E-A in 2017, Ami worked in private practice for 22 years. Her primary focus was on all aspects of litigation relating to the construction industry, including construction defect and injury, product liability, professional liability, and commercial disputes.
Different industries and fields may require different approaches to the question of reliability, which a survey of caselaw post-Daubert demonstrates quite clearly.
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A Fast-Moving Train Coming Into the Insurance Company Station? The Cybersecurity Model Rule for Carriers Molly Arranz and John Ochoa
If you are an insurance provider, you already have pounding, regulatory headaches. Now, you may have one more. Cybersecurity is perhaps one of the most important topics for any industry—and the insurance sector is chief among them. Insurers and insurance producers process and use highly sensitive information on a daily basis in the underwriting and claims processes. At the same time, there have been high-profile data breaches that have included two major hits in the insurance sector: Anthem and Premera Blue Cross. These occurrences have heralded a swath of new state and federal legislation— and, the National Association of Insurance Commissioners (NAIC) has taken notice. Last year, New York was the first state to enact regulations that require insurers to establish a comprehensive data privacy plan to protect their sensitive and confidential information from hackers and other unauthorized access. New York’s cybersecurity regulations apply to any insurer licensed to sell insurance in the state of New York. That’s (already) a broad group. Other states have been getting in line. Specifically, the state legislatures in South Carolina, Michigan, Ohio, Mississippi and Alabama have all somewhat recently enacted cybersecurity legislation applicable to licensed insurance sellers in their states. And, within the next two years, insurance companies licensed in these states must be in compliance with state specific rules; they must file documentation certifying compliance—unless they qualify for an exemption. The consequences of non-compliance can range from revocation of licenses to fines. Now that all 50 states have data breach notification laws, an unwary follower of cyber regulation may believe that those wide-ranging laws, in any given state, serve as the (sole) benchmark. Not so for insurance providers. In fact, South Carolina, Michigan, Ohio, Mississippi and Alabama all looked to and adopted, in substantial part, the NAIC’s Data Security Model Rule, which came on the scene in the final quarter of 2017. The NAIC’s Model Rule is an acknowledgement that insurance companies often store and maintain large amounts of personal information about clients, and as a result, should proactively take steps to protect that information. The purpose and intent is: “to establish standards for data security and standards for the investigation of and notification to the Commissioner of a Cybersecurity Event applicable to Licensees.” The Model Rule contains several provisions with which insurers must comply, including, for example: a comprehensive data security program; designation of a chief information
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technology officer; regular training for employees on cyber risks; and, a data breach response plan. Notably, in light of the ever-developing ways in which cyberattacks occur—and are defined—a “cybersecurity event” means “unauthorized access to” “disruption [of]” or “misuse of ” an information system or information. It is expected that other states will soon follow these first five states. In fact, the NAIC drafted its Model Rule with the hope that all 50 states will have enacted this model rule in some form. Indeed, when a model rule is adopted, “it becomes a priority of the NAIC.” The goal of such a Model Rule is to “encourage legislatures or regulatory bodies to adopt the model law,
Now that all 50 states have data breach notification laws, an unwary follower of cyber regulation may believe that those wide-ranging laws, in any given state, serve as the (sole) benchmark. with as few changes as possible, in a majority of states within three years after its adoption by the NAIC members.” Although the states that have looked to it have largely followed the NAIC’s Model Rule, some variations exist, particularly with regard to the timeline for providing notice of a breach or incident to customers, as well as whether certain types of companies are exempted. Though the exemptions are generally based on both the total number of employees of a licensed insurer and the insurer’s gross revenue, the critical mass for either benchmark can vary state-tostate. In the end, this Model Rule may introduce additional or contrasting considerations and requirements for not only determining when a violation of a law or when a breach has occurred but also for reporting requirements. For example, a state may have a data breach notification law that defines a breach as “unauthorized acquisition” of sensitive data, while the Model Rule currently defines a reportable, cybersecurity event as, for example, a “disruption…of…
an information system.” If a state adopted the Model Rule wholesale, there would be competing deliberations for a triggering event that requires the carrier to notify. And, reporting to the state’s attorney general may be the mandated requirement for a data breach, while notification to the Insurance Commissioner could be required for a “cybersecurity event.” It appears there will continue to be a patchwork of laws, requirements and analysis. With looming compliance requirements for adherence to the Model Rule, alone, insurance companies should take steps, today, toward the following: • Review whether you do business in a state that has these cybersecurity regulations; • Analyze whether your company qualifies for any exemptions from requirements in those state regulations; • Partner with your cybersecurity advisors and attorneys to audit your current information systems to create a cybersecurity plan; and, • Consider—and calendar—compliance and reporting deadlines in each particular state. Finally, compliance with state cybersecurity laws is not only required—it could protect your company from litigation. In particular, Ohio’s cybersecurity law contains a “safe harbor” provision, whereby a company that is in compliance with Ohio’s cybersecurity law is entitled to an affirmative defense to any tort claim brought under Ohio law. This should provide added incentive for companies to ensure compliance with state cybersecurity laws.
Molly Arranz is the co-chair of SmithAmundsen’s Data Privacy, Security and Litigation Practice Group and a partner in the firm’s Class Action Practice Group. She is a CIPP-US, advising clients on how to protect against and respond to data and privacy incidents. She has defended more than eighty class actions involving a range of theories, including privacy violations, consumer fraud and breach of contract. John Ochoa is a partner with SmithAmundsen’s Class Action and Data, Security and Litigation Practice Groups. He has extensive experience litigating privacy and consumer protection claims. John advises companies on best practices for protecting their customers’ and employees’ personal information and in responding to suspected data breaches.
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Growing Pains: Employers Grappling with Marijuana in the Workplace Christina L. Lewis
2018 was a busy year for the marijuana industry in the Northeast. Vermont legalized recreational marijuana, while Massachusetts saw the opening of the Commonwealth’s first recreational marijuana stores. These developments reflect a pattern as more states across the country pass laws legalizing marijuana. In fact, medical marijuana use is now legal in 33 states and the District of Columbia, while recreational use is legal in 10 states and the District of Columbia. Although more states are legalizing marijuana, its standing in the workplace is not always clear. The drug remains illegal under the federal Controlled Substances Act, but it has become increasingly difficult for employers to enforce zero-tolerance drug policies as states pass laws permitting marijuana use. For employers seeking to reconcile medical marijuana use with disability discrimination law, things can be even more complicated and confusing. Here are three areas of consideration for employers grappling with uncertainty around marijuana policies in the workplace. REEXAMINE DRUG TESTING POLICIES As marijuana use becomes more commonplace, employers should reexamine policies for pre-employment screening and random drug testing to ensure compliance. Some employers choose to treat marijuana like alcohol, prohibiting use while at work but otherwise taking a hands-off approach to off-hours use. For employees with safety-sensitive positions, such as truck drivers, drug tests are likely to continue, since working while under the influence could create unsafe conditions. But not all drug testing policies are so straightforward. In Massachusetts, for example, it is legal for employers to refuse to hire someone if they fail a drug test because of recreational use, even though adult use is legal under state law. As explained below, the question becomes more complicated when employees use marijuana for medicinal purposes. UNDERSTAND EVOLVING COURT RULINGS The Americans with Disabilities Act (ADA) prohibits employers from discriminating against qualified individuals on the basis of a disability. It also requires employers to provide reasonable accommodations to employees with disabilities so that they can perform the essential functions of their job. Many individuals use medical marijuana to treat disabilities that are recognized under the ADA. Since marijuana is illegal under federal law, however, courts
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have generally ruled that employers are not required to accommodate the use of medical marijuana under the ADA. At the state level, on the other hand, court decisions are trending toward protecting medical marijuana patients from discrimination. Consider three rulings from 2017. First, a Rhode Island Superior
"2019 promises to bring more change to the Northeast, as marijuana continues to become more prevalent across the
they use the drug. And in Connecticut, the Federal district court held that federal law does not preempt a state statute barring employers from firing or refusing to hire a medical marijuana user. The precedent set in these cases require employers to determine whether permitting an employee to use medical marijuana is a reasonable accommodation or whether it would be an undue hardship. In 2019 and beyond, it will be fascinating to watch as the courts confront new marijuana issues. REMEMBER: CHANGE IS THE ONLY CONSTANT 2019 promises to bring more change to the Northeast, as marijuana continues to become more prevalent across the region. In Massachusetts, more recreational marijuana stores are expected to open. In Connecticut, the newly elected governor expects recreational marijuana legislation to be a priority for state lawmakers. With marijuana poised to remain a hot topic in legislatures and court rooms moving forward, new court decisions should be anticipated. In Massachusetts, for example, the SJC has left a few noteworthy questions unanswered. The court has not addressed if it is legal for an employer to prohibit medical marijuana use, even outside of work, if the employer can prove there is a business reason for doing so. The SJC has also not ruled on the legality of employees who use marijuana to treat a disability without a doctor’s recommendation – nor has it ruled on any case involving recreational marijuana use and its impact on employment. To keep pace with this fast-changing legal landscape, multi-state employers should have specific state drug testing policies in their employee handbook. As always, employers should consult with their legal counsel to mitigate any risks and make sure they are fully compliant, both with laws that protect their employees, and laws that provide for a safe workplace.
region." Court held that employers cannot refuse to hire a medical marijuana cardholder, even if the individual admittedly would not pass a pre-employment drug test. In Massachusetts, the Supreme Judicial Court (SJC) ruled that Bay State companies cannot fire employees who have a prescription for medical marijuana simply because
Christina Lewis is the Vice Chair of Hinckley Allen’s Litigation Practice Group, as well as Practice Group Leader for the firm’s Labor & Employment Group. Christina represents employers in practically all facets of their relationships with employees – and has a particularly strong background in employment litigation.
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OZ Update: The New Proposed Regulations Are Out New Guidance on Eligibility for OZ Tax Benefits Emily Meeker and Charlie Davis
In April, Treasury issued a second round of proposed regulations regarding Opportunity Zones―offering investors more clarity as to whether their investments in designated Opportunity Zones will qualify for current capital gains tax deferral and future capital gains tax elimination. This update discusses the background of the Opportunity Zone tax benefits and explains three important provisions in this new set of regulations. These three provisions: 1. Explain how non-real estate businesses qualify as OZ businesses; 2. Expand the working capital safe harbor for OZ businesses; and 3. Allow the ownership and operation of real property to qualify as the active conduct of a trade or business in an OZ. BACKGROUND The Tax Cuts and Jobs Act of 2017 included provisions that allow investors to invest capital gains in designated economically depressed areas, known as “Opportunity Zones,” and take advantage of multiple tax benefits as a result of this investment. The specific benefits include:
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1. Temporary Deferral: The investor defers the tax on the capital gain invested in the Opportunity Zone (through an OZ Fund) until the earlier of a sale or exchange of the investment, or December 31, 2026. 2. Step-up in Basis After 5 and 7 Years: The investor realizes a 10% step up in basis of its investment if the investor holds the investment for at least 5 years prior to 2027—in other words, the investor will only pay tax on 90% of the deferred gain when that gain is taxed. The investor realizes an additional 5% step up in basis of its investment if the investor holds the investment for at least 7 years before 2027, meaning that the investor will only pay tax on 85% of the deferred gain when that gain is taxed. 3. No Tax on Post-Acquisition Appreciation: The investor may eliminate all tax on post-acquisition appreciation (that is, all gain above the initial deferred gain, which will be taxed as provided above) if the investor holds the investment for at least 10 years, and further disposes of the investment before 2048.
Investments must be made in “Qualified Opportunity Funds,” which generally are corporations, partnerships, or multi-member LLCs with a designated purpose of investing in business property in an Opportunity Zone. This business property may be property used in a trade or business (“Qualified Opportunity Zone Business Property”), or it may be another entity that operates a trade or business (a “Qualified Opportunity Zone Business”). THREE IMPORTANT PROVISIONS IN THIS NEW ROUND OF PROPOSED REGULATIONS How Non-Real Estate Businesses Qualify as Qualified Opportunity Zone Businesses This portion of the new proposed regulations provides answers to one of the biggest questions surrounding Opportunity Zones. In order to qualify as a Qualified Opportunity Zone Business, the entity must derive at least 50% of its gross income from the active conduct of a trade or business in an Opportunity Zone. A business which is based upon the real estate on which it sits (i.e., an apartment complex or a restaurant) should be able to
determine if it complies with this rule easily: if the business sits on Opportunity Zone real estate, then it should be generating most, if not all, of its income from activities in an Opportunity Zone. However, the statute and the first round of proposed regulations offered no guidance to a business that may have operations beyond the boundaries of its office building in an Opportunity Zone. This second round of proposed regulations offers businesses 3 safe harbors to meet the 50% gross income test: Safe Harbor 1 – 50% of the Service Hours Performed in the OZ If at least half of the service hours performed by the business’ employees and independent contractors are performed within the Opportunity Zone, the business will meet the 50% income test. • Examples of businesses that might qualify: • Tech start-up with majority of the employee hours worked on a campus in an OZ; or • Manufacturing company with a majority of the employee hours worked on a plant in an OZ. Safe Harbor 2 – 50% of Compensation Paid to Workers in the OZ If at least half of the compensation paid to the business’ employees and independent contractors is for services performed in the Opportunity Zone, the business will meet the 50% income test. • Examples of businesses that might qualify: • Tech start-up with service center outside of OZ, so long as the start-up pays 50% of its total compensation for services performed by employees and independent contractors on a campus in an OZ; or • Any business with multiple locations, so long as the business pays 50% of total compensation for work performed by employees and independent contractors in an OZ. Safe Harbor 3 – Tangible Property and Management or Operational Functions If the business’ tangible property in the Opportunity Zone and the management or operational functions performed in the Opportunity Zone are each necessary to generate 50% of the gross income of the trade or business, the business will meet the 50% income test. • Examples of businesses that might qualify: • Landscaping business with its headquarters in an OZ and all its equipment and supplies are stored in the headquarters’ facilities; or
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• Engineering firm with its headquarters in an OZ and all its equipment (computers, etc.) and supplies are stored at the headquarters’ location.
In short, the proposed regulations clarify that businesses in a variety of industries may qualify as Qualified Opportunity Zone Businesses. Anyone thinking about opening a new business should consider whether it makes sense to locate the business in an Opportunity Zone. In addition, these favorable rules may increase the demand for all types of commercial real estate in Opportunity Zones. THE SECOND SET OF REGULATIONS EXPANDS THE SAFE HARBOR FOR WORKING CAPITAL The new proposed regulations also expand the safe harbor for working capital in three important ways. The October 2018 proposed regulations allowed a Qualified Opportunity Zone Business a safe harbor for a reasonable amount of working capital to avoid penalizing a business for holding cash, which does not qualify as Opportunity Zone Business Property, while it developed a project in the OZ. The first regulations required that (1) the capital be designated in a written plan for the acquisition, construction, and/or substantial improvement of tangible property in a zone and (2) the working capital be spent within 31 months. 1. More Flexibility for Use of Working Capital The new regulations now allow a business to designate working capital in a written plan for the development of a trade or business in an Opportunity Zone, including the acquisition, construction, and/or substantial improvement of tangible property in a zone. This expanded safe harbor will allow an OZ business to spend capital on payroll, equipment, and other expenses as it sets up its business. It expands the safe harbor to OZ businesses and allows flexibility in how the capital can be used. 2. Governmental Delay Will Not Violate the Safe Harbor The new regulations also state that if use of the capital assets is delayed by waiting for governmental action, for which the application is complete, that delay does not violate the safe harbor. This will be important for real estate developers or any other businesses that require governmental approval, such as rezoning or permits. So long as an application has been completed, a delay beyond 31-months because of government in
action will not violate the safe harbor. 3. Single Business May Benefit from Multiple Safe Harbors If a single business receives cash on multiple occasions, it may benefit from the working capital safe harbor each time it receives new cash for the development of the business, so long as it follows the other requirements of the safe harbor. We believe this additional flexibility will give investors and developers more confidence that they will be able to develop their projects and stay within the time frames set forth in the regulations. THESE REGULATIONS ALLOW THE OWNERSHIP AND OPERATION OF REAL PROPERTY TO QUALIFY AS THE ACTIVE CONDUCT OF A TRADE OR BUSINESS A number of clients have asked us whether the leasing of real property by a Qualified Opportunity Zone Business will amount to the active conduct of a trade or business. The new proposed regulations clarify that the ownership and operation (including leasing) of real property used in a trade or business is treated as the active conduct of a trade or business in an OZ. However, merely entering into a triple-netlease with respect to real property owned by a taxpayer is not the active conduct of a trade or business by such taxpayer.
Emily Meeker of Poyner Spruill in North Carolina is an experienced litigator who focuses her practice on real estate and government-related litigation. She represents business, individuals, and local governments in condemnation cases, property tax appeals, land-use matters, and other complex civil litigation. Charlie Davis of Poyner Spruill in North Carolina practices primarily in the areas of estate planning and administration, tax, and business law. He provides legal advice to individuals regarding estate planning and administration. He also works with businesses on their general corporate and tax planning legal needs.
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Mediation Strategies – Bridging the Gap Involving a structured settlement consultant to maximize claims dollars in the face of high demands. Rachel D. Grant, CSSC
Insurance claims professionals and their attorneys face many challenges throughout the course of a claim. Whether the claim moves into litigation and mediation or the claims professional discusses early resolution with a plaintiff, involving a structured settlement consultant may prove valuable to your settlement efforts. A LITTLE HISTORY Structured settlements are alternatives to cash-only settlements and allow defendants to match settlement dollars to the future needs of a plaintiff. Since 1982, both federal law and IRS regulations have legislatively encouraged plaintiffs to use structured settlement annuities to resolve their physical injury and wrongful death cases. The economic uncertainty that the 200809 recession brought caused a dramatic surge in interest for structured settlements: plaintiffs and their attorneys use structured settlements to ensure that guaranteed tax-exempt payments act to protect against poor financial management and volatility in the financial markets. Historically, U.S. law has recognized
Structured Financial Associates, Inc.
that personal injury damages should be excluded from taxable income since the Revenue Act of 1918. Section 104(a)(2) of the Internal Revenue Code codified the law, guaranteeing that lump sum monies received for the damages “on account of” physical injury are excluded from gross income. There was, however, no exclusion for interest and investment earnings. In 1983, Public Law 97-473 amended Section 104(a) (2) to allow that the full amount of the future periodic payments from a structured settlement, which consists of both principal and interest, constitute damages and are, therefore, exempt from federal tax liability. In 1997, amendments to the federal tax law expanded the use of structured settlements to include workers’ compensation claims [Section 104(a)(1)]. A RECENT STUDY In 2014, the National Structured Settlements Trade Association (NSSTA) joined forces with CLM Advisors to survey 100+ claims professionals about how they use structured settlements in their claims practice.
The study found that claims profes sionals estimated that: • 40% of the structured settlement proposals they have requested from consultants are used; • 25% of the study’s participants said that they believe that using structured settlement proposals helps to speed up the resolution of the claim; • Almost 50% felt that utilizing a structured settlement makes a case more likely to settle. • Interestingly, 75% of those surveyed stated that they would take advantage of a structured settlement if they were an injured party. Fostering a Dialogue: While a lump sum settlement is one-dimensional, structured settlements allow the claims professionals to foster a dialogue on the actual past, present, and future needs of the plaintiff that extends beyond a simple discussion of settlement value. In developing a settlement strategy, a structured settlement offers claims professionals and their attorneys an alternative to a cash-only negotiation, al-
lowing claims organizations to legitimately stretch their claims dollars while negotiating in good faith. Needs-Based: The “time value of money” principle affords the opportunity to create a variety of payment streams tailored to a plaintiff’s specific situation. This focus on future needs can include “period certain” payment streams, payable for specific periods of time immediately or in the future, to provide for medical needs, lost earnings, education, scholarship funds, and the like. Lifetime annuities can provide payments for the plaintiff’s life and can be guaranteed for specific periods of time to provide for ongoing income to the plaintiff’s surviving beneficiaries. Low Risk: Personal injury plaintiffs and beneficiaries of wrongful death actions generally have very low or no investment risk tolerance due to ongoing financial needs. Despite current lower interest rates, structured settlements remain a valuable option since they are guaranteed and offer tax-free growth. Structured settlements enable the plaintiff to have a degree of spendthrift protection in place to ensure adequate funds are available as needs arise. Further, structured settlement payments should be coordinated with current and anticipated income sources of the plaintiff. For example, if a plaintiff is currently employed but is concerned about funding their children’s education goals and/or their own future retirement plans, an income stream can be established to provide periodic payments to meet those future financial goals. Structured settlements can also be an effective tool to provide monthly income to be used to fund health insurance premium payments and other ongoing outof-pocket medical expenses. Workers’ Compensation: In workers’ compensation claims, the traditional structured settlement is a tried and true method to fund Medicare Set-Aside Arrangements (MSAs). After the initial “seed” cash deposit, a structured settlement can be established to fund the MSA on an annual basis to pay for medical expenses attributed to the work-related illness or injury. This protects the MSA account from premature consumption and is, therefore, viewed favorably by CMS. THE ROLE OF STRUCTURED SETTLEMENT CONSULTANTS The NSSTA/CLM study showed that the claims professionals surveyed agreed that claims are more likely to settle when a creative approach is taken during settlement negotiations. A full 96% ranked their structured settlement consultants’ experience, knowledge
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CLAIMS FOR WHICH A STRUCTURED SETTLEMENT ARE MOST USEFUL: • Wrongful death • Minor or mentally incompetent person • Disability and catastrophic injuries • Plaintiffs with limited investment or financial expertise • Offer and demand are too far apart • Attorney fees can be structured
ADVANTAGES FOR THE DEFENDANT/ INSURER AND DEFENSE COUNSEL • Reduces administrative and legal expenses • Reduces expense of trial and appeal • Bridges gap between offer and demand • Eliminates potential bad faith claim • Settles case without risk of adverse trial results • Can break a negotiation impasse • Services provided at no additional cost to the parties.
ADVANTAGES FOR PLAINTIFF AND PLAINTIFF’S COUNSEL • Tailored income stream to meet specific financial needs • Guaranteed money for plaintiff and family • Investment advantages • Competitive ”taxable equivalent” return • Payments are income-tax exempt • Can integrate the structured settlement program with asset management solutions and/or trust • Avoids hazards of litigation, expenses of discovery and trial • Services provided at no additional cost to the parties.
and level of expertise as “valuable” to “very valuable” to their claims process. Further, 67% of those surveyed stated that the participation of their structured settlement consultants at mediations and settlement conferences was “valuable” to “very valuable.” Help Identify Future Needs: In addition to preparing well thought out structured settlement proposals, an experienced structured settlement consultant will assist in identifying the plaintiff’s future needs that can be addressed utilizing future periodic payments, including the needs of any dependents. This may involve the review and analysis of life care plans to determine how a structured settlement could provide savings for future costs. This information can be useful in the overall evaluation of the claim and for establishing supportable reserves. Collaboration: Collaboration with all parties – plaintiffs, insurers, self-insured entities, TPAs, attorneys, and excess carriers – is essential to achieving a good resolution. Your consultant is able to help identify the benefits of a structured settlement to all parties and assist the plaintiff in understanding the advantages and tax-exempt benefits, as well as coordinating the settlement with other legal vehicles so that eligibility for public benefits is preserved. Once the personal injury claim settles, the consultant will protect funding dates so that benefits are maximized and costs are minimized. Further, the consultant will assist in the preparation of the necessary settlement documents to ensure that the proper corporate entities are included and protected and that the IRS requirements are met so that the tax advantages are preserved. Bottom Line: With a structured settlement, the settlement team is able to negotiate benefits, not just bottom-line costs. All settlements involve compromise, and, while you may not meet all the plaintiff’s needs, utilizing structured settlement options in your claims negotiations demonstrates a willingness to creatively address the plaintiff’s unique needs.
Rachel D. Grant, CSSC, is a settlement consultant and director of communication for USLAW NETWORK corporate partner Structured Financial Associates, Inc.. Rachel is based in the metro-Detroit area.
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STORYTELLING IN THE AGE OF EMOJIS Adam Bloomberg
Weaving words together to create pictures in the minds of jurors – true storytelling – has long been the foundation of successful trial lawyers. But why stop with words alone? The practice of adding real images to a presentation further enhances jurors’ ability to comprehend and recall case themes. These images can resonate across age, gender, beliefs, and individual experiences. Lawyers have been taking advantage of visual presentations for decades. However, the images used in these presentations, and how they’re used, must adapt with changing times in order to stay relevant to the modern juror. Decades ago, a single large image on a slide could often do the trick; an attorney could display and discuss an iceberg, for example – a useful metaphor to represent the important context and details hidden from view by your
opponent’s over-simplified version of the story. But today, that’s not enough. Because it is now commonplace to communicate using technology, with an emphasis on brevity, the average juror is experienced at sending and receiving images that immediately convey a story. One might send a message to a friend or colleague containing icons of an airplane and a thumbs-up, followed by a question mark; we would all likely recognize this shorthand way to say, “Did your flight go ok?” See figure 1.
Figure 1: Icons
Indeed, in few ways is our societal progression more evident than with the ubiquity of such “emojis.” Emojis, a term for the broad set of digital icons (literally “picture characters” in Japanese) such as the aforementioned airplane and thumbs-up, have grown far beyond a novelty and into a standard means of inter-personal communication. They’ve been embraced and accepted across multiple generations. So while using images and icons in trial graphics certainly isn’t new, the widespread social use of emojis nevertheless serves to broaden your catalogue of icons and expand the way you can use them to help tell your stories in the courtroom. Ultimately, if your goal is to communicate most quickly, accurately, and effectively with jurors, then knowing when and how to use icons appropriately in your arguments is crucial.
WHY SHOULD EMOJIS INFLUENCE YOUR TRIAL GRAPHICS? Given the frequency with which jurors now use icons in their own daily lives, attorneys should be encouraged to incorporate icons more frequently into their presentations. By matching what jurors have come to expect, the trial visuals will feel more familiar, relatable, and modern. And why are icons so helpful in the first place? There’s a lot of psychology that goes into answering that question, but we’ll just start by saying that humans are “cognitive misers.” That is, the less work our brains have to do to figure out what someone is trying to say, the easier it will be to pay attention, and the more likely we’ll understand and remember. Icons are a major aid in this process. They create mental shortcuts. In fact, studies show that reading text or hearing speech is not particularly efficient; a juror must first process the words they see or hear, and then parse out the meaning behind those words – these are separate brain functions. Icons help to bypass that mental middleman and cut straight to the point. Here are some of the major benefits of icons: • Icons can tell a story, tell it quickly, and tell it memorably. • As stated, no mental middleman. • They connect a visual stimulus to your message, making it much easier to recall. • They can strengthen your arguments and metaphors by helping jurors better visualize the concepts. • Like colors, they often have common associations you can use to your advantage. • Icons can also clean up your graphics and replace sprawling, wordy entries with simple pictures. • In Figure 2, why write, “For two years no complaints were filed” when you can simply cross out “complaints” with a big “Ø”? Why type out the words “document,” “email correspondence,”
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and/or “phone call” when you can represent them with a small icon? (Works particularly well for streamlining busy timelines)
FOR TWO YEARS NO COMPLAINTS WERE FILED Figure 2: Words versus icons
• Icons don’t have to completely replace text; they can augment it, too, working to emphasize or clarify it. Indeed, even easy concepts can be made more digestible with the inclusion of a quick clue-in using an icon. In Figure 3, various icons help jurors understand when and why project delays occurred.
CHALLENGES WITH USING ICONS IN THE COURTROOM Icons do come with certain caveats, however. Especially if your graphics begin to use them more often and feature them more prominently. To be clear: you’re not looking to copy all the hippest, newest emojis. You want the icons you use in trial to be as concrete as possible. You want to be able to make a very safe bet that your jurors will recognize and understand what you’re presenting. Furthermore, because icons can convey feelings and subjective meanings, and these meanings can evolve, they run the risk of being misunderstood by jurors. In some instances, they can even be seen as offensive or uncomfortable, based on jurors’ personal experiences. This can limit the pool of useful icons, or force you to be aware of small details that might complicate your message with unwanted connotations.
Figure 3: Icons Used in a Timeline
Remember also that opposing counsel can object to your images. I recall one trial in particular: In describing a factoring of accounts, we had juxtaposed our opponent as a large company by representing them with an icon of a large building. Opposing counsel vigorously objected to use of the image, and while we ultimately prevailed and were able to keep it, it was a very close call. Being mindful of this risk will help you choose icons with potential objections in mind; it’s also wise to keep an alternate version of certain graphics ready as a backup. SOME PROVEN ICONS FOR THE COURTROOM With those caveats in mind, here’s a look at a number of icons that tend to be very effective. These have strong, universal connotations and are thus ideal for your purposes. • Red Flags: Instantlyrecognizable, red flags signify caution, warning, and concern. If you want to give jurors the feeling that your opponent made some serious mistakes when it should have known better, list off some of the red flags it overlooked. • Safety Signs: A versatile icon, safety signs can be used across a variety of litigation. In toxic tort cases, defense attorneys can use them to show industry standards and employer guidelines an employee ignored that caused the injury. In a commercial matter, a stop sign can be used to compare a normal, proper transaction with a deal that went wrong. • People: Emoji images of people can serve a variety of purposes
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Figure 4: How the Medical System Works
in your graphics. They can be wearing particular garments or accessories to signify a certain profession, such as police officers, doctors, construction workers, or businesspeople. Note: Be conscious of skin color choices, and try to represent your case venue demographics. Also, keep in mind that if you include faces (we often do not), jurors will gain emotional cues from the expressions, which may prove distracting or offer mixed messages. • Handshake / Signing a Document: Both of these icons signify a deal being made. Great for emphasizing to jurors exactly when your opponent formally agreed to a contract. • Checkmark: The checkmark has been used in trial graphics for many, many years – and where better than in a checklist graphic? It can quickly guide jurors down a list of actions your client took; you can also contrast it with X’s to show what your opponent didn’t do.
• Email / Document / Phone: These serve to cue jurors to expect an upcoming transcript callout, or let them see on a timeline where documents, emails, calls, etc. fall into place.
ICONS USED IN A FLOWCHART You’re always trying to reduce jurors’ mental load, and jurors often struggle to visualize complicated systems and processes if they’re explained with words alone. So, much like people in the present day frequently communicate with only pictures, you can use icon-heavy graphics to walk them through unfamiliar or complex concepts. Flowcharts can be the perfect place to take this approach. Example: The images in Figure 4 (above) utilized plenty of icons to simplify the dense medical care system. With minimal text, we were able to compare those receiving health insurance from an employer with those on Medicaid, and guide jurors along each step. In the image on the left, a “company sign” and suited people icons quickly represent patients’ employers, with a variety of “patients” underneath. The building to their right even includes a “shield” icon to highlight the protective nature of the insurance company. In the center, a viewer can then easily see the Medicaid differences, given the removal of the employer icons and replacement of the insurance company building with a government building (note its highly-recognizable domed top). On the right is a screenshot from an animation in which the people were shown moving through the system, either to hospitals and clinics directly, or after first visiting with a private practice doctor. Animated “$” icons (as seen in the image) were then used to demonstrate the flow of money to each party in each example. Meanwhile, small bits of text near each icon ensure that they are interpreted correctly and clearly.
The people icons we used don’t have faces; as discussed previously, this was deliberate. We didn’t want to associate any sort of emotional cues with these images. They were there purely to teach jurors about the system, not to encourage jurors to expend any time or thought as to why the people had happy, sad, or straight-faced expressions. CONCLUSION Icons, whether industry-standards that have worked for years or newer images commonly used in present-day communications, can greatly boost your storytelling power and strengthen your case. Being a truly effective trial attorney is as much about building a case as it is about playing to your audience of jurors. So if jurors are constantly relying on pictures to connect outside the courtroom, it’s time to begin speaking to them in this new language.
With more than 24 years of experience, Adam Bloomberg has consulted with hundreds of trial teams and corporate clients to develop communication strategies and presentations that educate, inform and persuade. He creates materials and exhibits for mock trials, focus groups, arbitrations and trials. Adam has led trial and war-room technology and logistics efforts for a plethora of cases, such as toxic tort, product liability, financial and commercial cases. Adam has “hot seated” over 1,000 trials, hearings, focus groups and mock trials.
Not to be confused with “emoticons” (a predecessor of sorts to the emoji), which are created with keyboard characters, such as ;) or :’-(
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Why Choose to Involve the Consultants at SFA? Brian Annandono, CSSC
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SFA Is a Trusted Name in the Industry Structured Financial Associates, Inc. (SFA) is one of the oldest and largest Structured Settlement firms in the United States, with over 60 consultants providing creative financial solutions through the use of Structured Settlements. Structured Settlements expedite claim resolution by providing for the specific, ongoing financial needs of the claimant. Quicker claims resolution benefits all parties, from claimants and their families who have confidence that their financial needs are met, to defendants who are motivated to reach equitable resolutions of claims.
SFA Expertise Brings Value SFA Consultants strive to provide outstanding Structured Settlement services. During the course of the settlement process, SFA Consultants work closely with clients and their attorneys, at no cost, to ensure that the financial needs of the injured party are met. Clients can receive needs analyses, quotes, economic analyses, and other services as needed. Claimant expenses (i.e., future medical needs, educational funds, retirement planning, wage loss, etc.) are carefully analyzed, and once a settlement option is selected, the SFA Consultant will work with all parties to manage the closing details.
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A TRADITION OF LEGAL EXCELLENCE SINCE 1938
on the move
Connell Foley LLP in Roseland, New Jersey, now offers a 24/7 Data Breach Response Hotline (973.840.2500) and email address (email@example.com) to ensure a rapid response for businesses that have suffered a cyber incident or suspect they are the victim of a data breach. John Wilcox of Dysart Taylor Cotter McMonigle & Montemore, P.C. in Kansas City, Missouri, has been named president-elect of the Transportation Lawyers Association (TLA). The TLA has five officers – secretary/treasurer, second vice president, first vice president, president-elect, and president. Every year, the officers ascend to the next position up the line, meaning that Wilcox will become TLA’s president in 2020. He will be Dysart Taylor’s seventh TLA president, following Lee Reeder (1952), Wentworth Griffin (1962), Bill Taylor (1985), Alex Lewandowski (1994), Ken Hoffman (2000), and Pat McMonigle (2011). Dysart Taylor currently has had more of its attorneys serve as TLA president than any other law firm. Lee Brumitt and Leslie Boe of Dysart Taylor Cotter McMonigle & Montemore, P.C.in Kansas City, Missouri, were named Fellows of the Construction Lawyers Society of America (CLSA). The CLSA is dedicated to promoting superior advocacy and ethical standards in construction law and fostering a scholarly and advanced exchange of ideas in all practices related to the specialty. Flaherty Sensabaugh Bonasso PLLC has named Tyler Dinsmore as managing member. Tyler will be assuming the responsibilities of Mike Bonasso who has served as the firm’s managing member since its inception. Tyler was the firm’s first associate hired 27 years ago. A few years later, he took over cases for a single asbestos client; since then he has managed and grown that book of business significantly, having managed more than 45,000 suits against product manufacturers and contractors in asbestos litigation, including several Fortune 500 companies. In addition to serving as managing member, Tyler will continue to lead the firm’s complex tort and product liability group.
Jason Proctor of Flaherty Sensabaugh Bonasso PLLC was recently welcomed by PLAC (formerly the Product Liability Advisory Council) as a member of their new Future Leaders group. PLAC is an invitation-only association of product manufacturers, suppliers, retailers and select regulatory, litigation and appellate professionals who work to shape the common law of product liability and complex regulation, provide guidance on changing regulations, and strategically help corporations manage risk throughout the entire product lifecycle. LeClairRyan attorney Rod Adams, who teaches Bioethics and Healthcare Law at Virginia Commonwealth University, recently received the Dennis Pointer Award at the Master of Science in Health Administration spring commencement ceremony. The Dennis Pointer Award is offered annually, “in recognition of an outstanding educator who, through example in the classroom and online, has demonstrated exceptional dedication and genuine concern for the development of critical thinking and learning skills of the MSHA students.” Walter Stern, a shareholder at Modrall Sperling in New Mexico, has been named Chair of the Albuquerque Community Foundation (ACF) for 2019. In addition to serving as an ACF Trustee since 2014, Walter also served as its Impact Investment Committee Chair for three years. He has also been a member of the Board of Trustees for Albuquerque Academy for more than a decade, serving as the school’s Chair from 2009 to 2014, and president, executive committee member and trustee of the nonprofit continuing education provider, Rocky Mountain Mineral Law Foundation. For the past six years, Walter served as Modrall Sperling’s President. Stuart Butzier, head of Modrall Sperling’s Natural Resources Department and managing director of the Santa Fe office, has been named by the Natural Resources, Energy and Environmental Law (NREEL) Section of the State Bar of New Mexico as the 2018 NREEL Lawyer of the Year. Stuart has assisted mining, energy, high-tech, and ranching clients throughout his 25-plus year legal career with Modrall Sperling.
Law360 has ranked USLAW member firms among its 2019 list of “Best Law Firms for Female Attorneys.” In the category of firms with 150-299 lawyers, Hanson Bridgett LLP (2) in San Francisco and SmithAmundsen (4) in Illinois were included. For this national ranking, Law360 surveyed more than 300 U.S. firms. Firms were first grouped according to size, then firms that fell below the average in various categories were deemed ineligible for the ranking. Remaining firms were ranked using a formula that equally weights the percentage of non-partners and percentage of total partners who are women.
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Elizabeth “Betsy” Burgess (left) of Carr Allison in Tallahassee, Florida, and Erin M. Diaz (right) of Wicker Smith O'Hara McCoy & Ford P.A. in Tampa, Florida, visit with Siri Lindley, world champion triathlete, high-performance coach and author before the start of the 2019 Women’s Connection in Cape Neddick, Maine. Siri delivered the keynote address.
Klinedinst Founder and CEO John D. Klinedinst has been named a 2019 Most Admired CEO by the San Diego Business Journal. The Most Admired CEO Award distinguishes chief executives who have a strong vision for their companies, have shown commitment to culture in the workplace, and have made significant contributions to the San Diego community.
Klinedinst PC in San Diego, California, was out in full force along with more than 10,000 other participants for the annual Navy Bay Bridge Run/Walk this past May. This annual 4-mile run/walk closes down part of the iconic Coronado Bay Bridge, giving participants the opportunity to cross from San Diego to Coronado on foot. Now in its 33rd year, the Bay Bridge Run/Walk raises funds for Quality of Life Programs for Navy personnel through San Diego County MWR programs. Klinedinst was proud to not only be a participant but an official sponsor of this worthwhile event.
Poyner Spruill attorney Cheslie Kryst earned the title of Miss USA 2019 on Thursday, May 2, in the Miss USA pageant held in Reno, Nevada. Cheslie came out on top in a competition of 51 contestants — one from each state and one from the District of Columbia — to earn the crown. She now advances to compete in this year’s Miss Universe competition in South Korea. A native of Charlotte, Cheslie is a member of Poyner Spruill's litigation team and concentrates her practice in complex civil litigation. She represents clients in a wide range of challenges including government-related disputes, constitutional litigation, professional malpractice claims, and construction disputes. “We are extremely proud of Cheslie for this accomplishment and the way she represented the state of North Carolina and our firm on this national stage,” said Dan Cahill, Poyner Spruill managing partner. “Cheslie continues to use her voice and platform to help others and advance the empowerment of professional women in all industries. She is truly deserving of this honor, and everyone at Poyner Spruill congratulates her on this effort.”
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Members, ABC Bus create CEO roundtable event. Tom DeMatteo, chief legal officer, general counsel & secretary for ABC Bus Companies, Inc. collaborated with four USLAW member attorneys to develop and present an exclusive CEO roundtable for the American Bus Association (ABA) Board of Directors and its members in Louisville, Kentucky. The program “Protecting the Value of Your Business,” was created specifically for CEOs, company owners and partners of ABA’s motor coach members. Participating USLAW members included Stephen E. Geduldig of Pion, Nerone, Girman, Winslow & Smith, P.C. in Harrisburg, Pennsylvania; Tamara B. Goorevitz of Franklin & Prokopik, P.C. in Baltimore, Maryland; Jeffrey L. O'Hara of Connell Foley LLP in Newark, New Jersey; and Teresa V. Pahl of Hanson Bridgett LLP in San Francisco. DeMatteo, who served as the session’s moderator, is a member of the USLAW Client Leadership Council, a hand-selected, diverse group of prestigious USLAW firm clients who provide expertise and advice to ensure the organization and its law firms meet the expectations of the client community.
Stephen E. Geduldig
Tamara B. Goorevitz
Jeffrey L. O'Hara
Karen Painter Randall, chair of Connell Foley's Cybersecurity and Data Privacy Group, has been selected by NJBIZ, New Jersey's leading business journal, as a winner of the inaugural NJ Digi-Tech Innovators Awards. This awards program is intended to showcase "individuals who introduced significant innovations in the technology and digital space that contributed significantly to the productivity and performance of their organizations." Of note, Karen is the only attorney among the 34 honorees selected for this award.
Sweeny, Wingate & Barrow, P.A. in Columbia, South Carolina, sponsored a lane at the second annual Columbia Bowling Buddies tournament in April. Bowling Buddies is fundraising event hosted by the Special Olympics of South Carolina that provides an opportunity for members of the community to show their support for local Special Olympics athletes.
Lisa O. Stump, president of Lashly & Baer, P.C. in St. Louis, Missouri, received the Women’s Justice Award from Missouri Lawyers Media. The award recognizes “women across Missouri who have demonstrated leadership, integrity, service, sacrifice and accomplishment in improving the quality of justice and exemplifying the highest ideals of the legal profession.” In addition to leading the firm, Lisa has a busy practice and is the chair of Lashly & Baer’s Government and Education practice areas.
Teresa V. Pahl
Lashly & Baer, P.C. attorney John Fox Arnold was awarded the Missouri Lawyers Weekly ICON Award. The ICON award honors 25 men and women attorneys, judges and professors across Missouri over the age of 60 for their notable sustained success and strong leadership within and outside the field of law.
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p ro bo no
spotlight Five Poyner Spruill LLP attorneys were named to the 2018 North Carolina Pro Bono Honor Society. Tom Davis, J.M. Durnovich, Drew Erteschik, Cheslie Kryst, and Caroline Mackie were included among 468 attorneys the North Carolina Pro Bono Resource Center (PBRC) recognized. Honorees must report 50 or more hours of pro bono legal services to clients unable to pay without expectation of a fee, an aspirational threshold set by Rule 6.1 of the North Carolina Rules of Professional Conduct. Each member of this year’s Honor Society class receives a certificate from the Supreme Court of North Carolina in recognition of their valuable contributions to the people of North Carolina. “Poyner Spruill encourages all attorneys in their pursuit of meaningful legal work, including the opportunity to provide pro bono services,” said Poyner Spruill managing partner Dan Cahill. “The firm congratulates Tom, J.M., Drew, Cheslie and Caroline on earning this recognition from the Pro Bono Honor Society. Their commitment to helping others through this type of work is commendable, and the honors are well-deserved.” Rule 6.1 encourages a variety of activities in addition to the pro bono legal services recognized by the Honor Society. Other encouraged activities include providing legal services at a substantially reduced fee; engaging in activities that improve the law, the legal system, or the legal profession; participating in non-legal community service; and contributing financially to North Carolina legal aid organizations.
Modrall Sperling participated in the Second Judicial District Court’s Civil Legal Clinic. Six of the firm’s attorneys assisted more than 40 people in need of pro bono legal advice. Susan Miller Bisong, Stuart Butzier, Spencer Edelman, Zack McCormick, Nicole Russell, and Walter Stern all provided their time and legal acumen to the effort. “This year there were more people in line for this clinic than there has been in the past four years I have participated,” noted Susan Miller Bisong, the shareholder who supports Modrall Sperling’s efforts by staffing each of the firm’s pro bono matters with the attorneys best able to provide assistance. The Honorable Judge C. Shannon Bacon expressed her heartfelt thanks to the firm, saying the time and effort Modrall Sperling attorneys gave was a great assistance to the judges.
USLAW NETWORK DIVERSITY COUNCIL
RECRUITMENT FORUM In conjunction with Howard University
USLAW NETWORK – guided by the leadership of the Diversity Council – will be hosting its inaugural USLAW Diversity Council Recruitment Forum with the Howard University School of Law on
Wednesday, Sept. 25, 2019 • Washington, D.C. This will be the day before the official start of the Fall 2019 USLAW NETWORK Client Conference also in D.C. More than 20 USLAW member firms will be participating in the recruiting sessions. USLAW also has created several networking opportunities for the law students. Chris Martin of Great American Custom and Dorothy Capers of National Express have been integral in helping USLAW arrange the Diversity Council Recruitment Forum at Howard.
USLAW has an active Diversity Council that is tasked with addressing the important issues of diversity and inclusion as they relate to member firms, practice groups, and clients. The Council’s leadership includes:
Chair Noble F. Allen Hinckley Allen Hartford, Connecticut
Steering Committee Leader Sheryl J. Willert Williams Kastner Seattle, Washington
Steering Committee Leader Merton A. Howard Hanson Bridgett LLP San Francisco, California
Board Liaison Earl W. Houston, II Martin, Tate, Morrow & Marston, P.C. Memphis, Tennessee
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uslaw network 2001. The Start of Something Better. Mega-firms...big, impersonal bastions of legal tradition, encumbered by bureaucracy and often slow to react. The need for an alternative was obvious. A vision of a network of smaller, regionally based, independent firms with the capability to respond quickly, efficiently and economically to client needs from Atlantic City to Pacific Grove was born. In its infancy, it was little more than a possibility, discussed around a small table and dreamed about by a handful of visionaries. But the idea proved too good to leave on the drawing board. Instead, with the support of some of the country’s brightest legal minds, USLAW NETWORK became a reality.
Fast-forward to today. The commitment remains the same as originally envisioned. To provide the highest quality legal representation and seamless cross-jurisdictional service to major corporations, insurance carriers, and to both large and small businesses alike, through a network of professional, innovative law firms dedicated to their client’s legal success. Now as a diverse network with more than 6,000 attorneys from more than 60 independent, full practice firms with roots in civil litigation across the U.S., Canada, Latin America and Asia, and with affiliations with TELFA in Europe, USLAW NETWORK remains a responsive, agile legal alternative to the mega-firms.
Home Field Advantage. USLAW NETWORK offers what it calls The Home Field Advantage which comes from knowing and understanding the venue in a way that allows a competitive advantage – a truism in both sports and business. Jurisdictional awareness is a key ingredient to successfully operating throughout the United States and abroad. Knowing the local rules, the judge, and the local business and legal environment provides our firms’ clients this advantage. The strength and power of an international presence combined with the understanding of a respected local firm makes for a winning line-up.
A Legal Network for Purchasers of Legal Services. USLAW NETWORK firms go way beyond providing quality legal services to their clients. Unlike other legal networks, USLAW is organized around client expectations, not around the member law firms. Clients receive ongoing educational opportunities, online resources including webinars,
jurisdictional updates, and resource libraries. We also provide a semi-annual USLAW Magazine, USLAW DigiKnow, which features insights into today’s trending legal topics, compendiums of law, as well as annual membership directory. To ensure our goals are the same as the clients our member firms serve, our Client Leadership Council and Practice Group Client Advisors are directly involved in the development of our programs and services. This communication pipeline is vital to our success and allows us to better monitor and meet client needs and expectations.
USLAW Abroad. Just as legal issues seldom follow state borders, they often extend beyond U.S. boundaries as well. In 2007, USLAW established a relationship with the TransEuropean Law Firms Alliance (TELFA), a network of more than 20 independent law firms representing more than 1000 lawyers through Europe to further our service and reach.
How USLAW NETWORK Membership is Determined. Firms are admitted to the NETWORK by invitation only and only after they are fully vetted through a rigorous review process. Many firms have been reviewed over the years, but only a small percentage were eventually invited to join. The search for quality member firms is a continuous and ongoing effort. Firms admitted must possess broad commercial legal capabilities and have substantial litigation and trial experience. In addition, USLAW NETWORK members must subscribe to a high level of service standards and are continuously evaluated to ensure these standards of quality and expertise are met.
USLAW in Review. • All vetted firms with demonstrated, robust practices and specialties • Efficient use of legal budgets, providing maximum return on legal services investments • Seamless, cross-jurisdictional service • Responsive and flexible • Multitude of educational opportunities and online resources • Team approach to legal services The USLAW Success Story. The reality of our success is simple: we succeed because our member firms’ clients succeed. Our member firms provide high-quality legal results through the efficient use of legal budgets. We provide cross-jurisdictional services eliminating the time and expense of securing adequate representation in different regions. We provide trusted and experienced specialists quickly. When a difficult legal matter emerges – whether it’s in a single jurisdiction, nationwide or internationally – USLAW is there. Success. For more information, please contact Roger M. Yaffe, USLAW CEO, at (800) 231-9110 or firstname.lastname@example.org
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membership roster ALABAMA | BIRMINGHAM Carr Allison Charles F. Carr......................(251) 626-9340 email@example.com
ILLINOIS | CHICAGO SmithAmundsen LLC Lew R.C. Bricker....................(312) 894-3224 firstname.lastname@example.org
NEW MEXICO | ALBUQUERQUE Modrall Sperling Jennifer G. Anderson............(505) 848-1809 Jennifer.Anderson@modrall.com
UTAH | SALT LAKE CITY Strong & Hanni, PC Stephen J. Trayner................(801) 323-2011 email@example.com
ALASKA | ANCHORAGE Richmond & Quinn Robert L. Richmond.............(907) 276-5727 firstname.lastname@example.org
INDIANA | INDIANAPOLIS Bingham Greenebaum Doll LLP James M. Hinshaw................(317) 968-5385 email@example.com
NEW YORK | HAWTHORNE Traub Lieberman Stephen D. Straus................. (914) 586-7005 firstname.lastname@example.org
VIRGINIA | RICHMOND LeClairRyan C. Erik Gustafson..................(703) 647-5902 email@example.com
ARIZONA | PHOENIX Jones, Skelton & Hochuli, P.L.C. Phillip H. Stanfield...............(602) 263-1745 firstname.lastname@example.org
IOWA | CEDAR RAPIDS Simmons Perrine Moyer Bergman PLC Kevin J. Visser........................(319) 366-7641 email@example.com
NEW YORK | UNIONDALE Rivkin Radler LLP David S. Wilck.......................(516) 357-3347 firstname.lastname@example.org
WASHINGTON | SEATTLE Williams Kastner Sheryl J. Willert.....................(206) 628-2408 email@example.com
ARKANSAS | LITTLE ROCK Quattlebaum, Grooms & Tull PLLC John E. Tull, III......................(501) 379-1705 firstname.lastname@example.org
KANSAS/WESTERN MISSOURI | KANSAS CITY Dysart Taylor Cotter McMonigle & Montemore, PC Patrick K. McMonigle...........(816) 714-3039 email@example.com
NORTH CAROLINA | RALEIGH Poyner Spruill LLP Deborah E. Sperati...............(252) 972-7095 firstname.lastname@example.org
WEST VIRGINIA | CHARLESTON Flaherty Sensabaugh Bonasso PLLC Andrew B. Cooke..................(304) 347-4274 email@example.com
NORTH DAKOTA | DICKINSON Ebeltoft . Sickler . Lawyers PLLC Randall N. Sickler.................(701) 225-5297 firstname.lastname@example.org
WISCONSIN | MILWAUKEE Laffey, Leitner & Goode LLC Jack Laffey.............................(414) 312-7105 email@example.com
OHIO | CLEVELAND Roetzel & Andress Bradley A. Wright..................(330) 849-6629 firstname.lastname@example.org
WYOMING | CASPER Williams, Porter, Day and Neville PC Scott E. Ortiz.........................(307) 265-0700 email@example.com
OKLAHOMA | OKLAHOMA CITY Pierce Couch Hendrickson Baysinger & Green, L.L.P. Gerald P. Green.....................(405) 552-5271 firstname.lastname@example.org
CALIFORNIA | LOS ANGELES Murchison & Cumming LLP Dan L. Longo.........................(714) 953-2244 email@example.com CALIFORNIA | SAN DIEGO Klinedinst PC John D. Klinedinst................(619) 239-8131 firstname.lastname@example.org CALIFORNIA | SAN FRANCISCO Hanson Bridgett LLP Mert A. Howard....................(415) 995-5033 email@example.com CALIFORNIA | SANTA BARBARA Snyder Burnett Egerer, LLP Barry Clifford Snyder............(805) 683-7750 firstname.lastname@example.org COLORADO | DENVER Lewis Roca Rothgerber Christie LLP Jessica L. Fuller.....................(303) 628-9527 Jfuller@lrrc.com CONNECTICUT | HARTFORD Hinckley Allen Noble F. Allen.......................(860) 725-6237 email@example.com DELAWARE | WILMINGTON Cooch and Taylor P.A. Christopher H. Lee...............(302) 984-3808 firstname.lastname@example.org FLORIDA | CENTRAL FLORIDA Wicker Smith O’Hara McCoy & Ford P.A. Richards H. Ford...................(407) 843-3939 email@example.com FLORIDA | SOUTH FLORIDA Wicker Smith O’Hara McCoy & Ford P.A. Nicholas E. Christin..............(305) 448-3939 firstname.lastname@example.org FLORIDA | TALLAHASSEE Carr Allison Christopher Barkas...............(850) 222-2107 email@example.com GEORGIA | ATLANTA Hall Booth Smith, P.C. John E. Hall, Jr.......................(404) 954-5000 firstname.lastname@example.org
KENTUCKY | LOUISVILLE Bingham Greenebaum Doll LLP Mark S. Riddle.......................(502) 587-3623 email@example.com LOUISIANA | NEW ORLEANS McCranie, Sistrunk, Anzelmo, Hardy McDaniel & Welch LLC Michael R. Sistrunk..............(504) 846-8338 firstname.lastname@example.org MAINE | PORTLAND Richardson, Whitman, Large & Badger Elizabeth G. Stouder.............(207) 774-7474 email@example.com MARYLAND | BALTIMORE Franklin & Prokopik, PC Albert B. Randall, Jr..............(410) 230-3622 firstname.lastname@example.org MINNESOTA | ST. PAUL Larson • King, LLP Mark A. Solheim...................(651) 312-6503 email@example.com MISSISSIPPI | GULFPORT Carr Allison Douglas Bagwell...................(228) 864-1060 firstname.lastname@example.org MISSISSIPPI | RIDGELAND Copeland, Cook, Taylor & Bush, P.A. James R. Moore, Jr................(601) 427-1301 email@example.com MISSOURI | ST. LOUIS Lashly & Baer, P.C. Stephen L. Beimdiek............(314) 436-8303 firstname.lastname@example.org MONTANA | GREAT FALLS Davis, Hatley, Haffeman & Tighe, P.C. Maxon R. Davis.....................(406) 761-5243 email@example.com NEBRASKA | OMAHA Baird Holm LLP Jennifer D. Tricker................(402) 636-8348 firstname.lastname@example.org
HAWAII | HONOLULU Goodsill Anderson Quinn & Stifel LLP Edmund K. Saffery................(808) 547-5736 email@example.com
NEVADA | LAS VEGAS Thorndal Armstrong Delk Balkenbush & Eisinger Brian K. Terry........................(702) 366-0622 firstname.lastname@example.org
IDAHO | BOISE Duke Scanlan & Hall, PLLC Richard E. Hall......................(208) 342-3310 email@example.com
NEW JERSEY | ROSELAND Connell Foley LLP Kevin R. Gardner..................(973) 840-2415 firstname.lastname@example.org
OREGON | PORTLAND Williams Kastner Greene & Markley Thomas A. Ped......................(503) 944-6988 email@example.com PENNSYLVANIA | PHILADELPHIA Sweeney & Sheehan, P.C. J. Michael Kunsch.................(215) 963-2481 firstname.lastname@example.org PENNSYLVANIA | PITTSBURGH Pion, Nerone, Girman, Winslow & Smith, P.C. John T. Pion..........................(412) 281-2288 email@example.com RHODE ISLAND | PROVIDENCE Adler Pollock & Sheehan P.C. Richard R. Beretta, Jr............(401) 427-6228 firstname.lastname@example.org SOUTH CAROLINA | COLUMBIA Sweeny, Wingate & Barrow, P.A. Mark S. Barrow.....................(803) 256-2233 email@example.com SOUTH DAKOTA | PIERRE Riter, Rogers, Wattier & Northrup, LLP Robert C. Riter......................(605) 224-5825 firstname.lastname@example.org TENNESSEE | MEMPHIS Martin, Tate, Morrow & Marston, P.C. Lee L. Piovarcy......................(901) 522-9000 email@example.com
ARGENTINA | BUENOS AIRES Barreiro, Olivas, De Luca, Jaca & Nicastro Nicolás Jaca Otaño..........(54 11) 4814-1746 firstname.lastname@example.org BRAZIL | SÃO PAULO Mundie e Advogados Rodolpho Protasio...........(55 11) 3040-2923 email@example.com CANADA | ALBERTA CALGARY & EDMONTON Parlee McLaws LLP Connor Glynn.......................(780) 423-8639 firstname.lastname@example.org CANADA | ONTARIO | OTTAWA Kelly Santini Lisa Langevin...........(613) 238-6321 ext 276 email@example.com CANADA | QUEBEC | BROSSARD Therrien Couture L.L.P. Douglas W. Clarke................(450) 462-8555 firstname.lastname@example.org CHINA | SHANGHAI Duan&Duan George Wang........................8621 6219 1103 email@example.com MEXICO | MEXICO CITY EC Legal Rubio Villegas René Mauricio Alva..........+52 55 5251 5023 firstname.lastname@example.org
TEXAS | DALLAS Fee, Smith, Sharp & Vitullo, L.L.P. Michael P. Sharp...................(972) 980-3255 email@example.com TEXAS | HOUSTON MehaffyWeber Barbara J. Barron..................(713) 655-1200 BarbaraBarron@mehaffyweber.com
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USLAW NETWORK offers legal decision makers a variety of complimentary products and services to assist them with their day-to-day operation and management of legal issues. The USLAW SourceBook provides information regarding each resource that is available. We encourage you to review these and take advantage of those that could benefit
the c om pl e t e
you and your company. For additional information, contact Roger M.
Yaffe, USLAW CEO, at firstname.lastname@example.org or (800) 231-9110, ext. 1.
USLAW is continually seeking to ensure that your legal out-
comes are successful and seamless. We hope that these resources can assist you. Please don’t hesitate to send us input on your experience with any of the products or services listed in the SourceBook as well as ideas for the future that would benefit you and your colleagues.
5, 2018 TELFA AND WED • SEP NETWORK/ BUSINESS E
ER EXCHANG USLAW ORDON CROSS-B CTI S TRANSA
montreal fall 2018
SEPT 6-8, 2018 USLAW NETW ORK • FAIRMONT THE QUEEN CLIENT CONFERE ELIZABETH NCE • MONTREAL, QC
USLAW NETWORK undoubtedly has some of the most knowledgeable attorneys in the world, but did you know that we also have the most valuable corporate partners in the legal profession? Don’t miss out on an opportunity to better your legal game plan by taking advantage of our corporate partners’ expertise. Areas of expertise include forensic engineering, legal visualization services, court reporting, jury consultation, courtroom technology, forensic accounting, structured settlements, eDiscovery, cyber security and data forensics, and investigation.
LA W N ETW
It’s no secret – USLAW can host a great event. We are very proud of the industry-leading educational sessions at our semi-annual client conferences, seminars, and client exchanges. Reaching from national to more localized offerings, USLAW member attorneys and the clients they serve meet throughout the year not only at USLAW-hosted events but also at many legal industry conferences. CLE accreditation is provided for most USLAW educational offerings.
NETW H 28 ORK – 30 | CLIEN JW MA T CONF RRIOT EREN T NASH CE VILLE | NASH VILLE , TN
A TEAM OF EXPERTS
USLAW ON CALL What is the value in having individual access to 4-8 highly experienced USLAW member attorneys from around the country and around the world (if necessary) roundtable specific issues you may be facing including actual cases or hypotheticals? USLAW is pleased to provide this free consultation that will give you a sense of comfort that you are managing a specific issue/case in an appropriate manner and make you aware of unforeseen roadblocks and variables that may pop up. It never hurts to phone a friend!
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We are pleased to offer a completely customizable one-stop educational program that will deliver information on today’s trending topics that are applicable and focused solely on your business. In order to accommodate the needs of multiple staff, we go one step further and provide LawMobile right in your office or a pre-selected local venue of your choice. We focus on specific markets where you do business and utilize a team of attorneys to share relevant jurisdictional knowledge important to your business’ success. Whether it is a one-hour lunch and learn, half-day intensive program or simply an informal meeting discussing a specific legal matter, USLAW will structure the opportunity to your requirements – all at no cost to your company.
COMPENDIUMS OF LAW
USLAW regularly produces new and updates existing Compendiums providing a multi-state resource that permits users to easily access state common and statutory law. Compendiums are easily sourced on a stateby-state basis and are developed by the member firms of USLAW. Some of the current compendiums include: Retail, Spoliation of Evidence, Transportation, Construction Law, Workers’ Compensation, Surveillance, Offer of Judgment, Employee Rights on Initial Medical Treatment, and a National Compendium addressing issues that arise prior to the commencement of litigation through trial and on to appeal. Visit the Client Resources section of uslaw.org for the complete USLAW compendium library.
SUBROGATION RIGHTS FOR WORKERS’ COMPENSATION LIENS
Compendiumof Law ®
ALWAYS KNOW WHAT LIES AHEAD
STATE JUDICIAL PROFILES BY COUNTY
Jurisdictional awareness of the court and juries on a county-by-county basis is a key ingredient to successfully navigating legal challenges throughout the United States. Knowing the local rules, the judge, and the local business and legal environment provides a unique competitive advantage. In order to best serve clients, USLAW NETWORK offers a judicial profile that identifies counties as Conservative, Moderate or Liberal and thus provides you an important Home Field Advantage.
STATE JUDICIAL PROFILES BY COUNTY 2019
PR EPARE D BY THE MEM BER FI RM S OF
USLAW DigiKnow is USLAW’s bi-weekly digital e-newsletter featuring insights and perspectives on today’s trending legal issues. Articles and posts are written by USLAW member attorneys who are subject matter leaders from our nearly 20 substantive USLAW Practice Areas and the USLAW membership in general. Through USLAW DigiKnow, we share legal, legislative and jurisdictional news as well as promote upcoming USLAW events and webinars that might be of interest to you and your colleagues. It is an excellent resource to keep abreast of new case law, important verdicts and other pending legislation.
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USLAW MOBILE APPS
We pack light. Take USLAW with you wherever you go with two important USLAW mobile applications. Get USLAW information fast by downloading USLAW 24/7. As well, USLAW Events is our Client Conference mobile app that archives all of the presentation materials, among several other items, from past USLAW Conferences. USLAW apps are available on iPhone/iPad, Android (by typing in keyword USLAW) and most Blackberry devices.
In todayâ€™s digital world there are many ways to connect, share, communicate, engage, interact and collaborate. Through any one of our various communication channels, sign on, ask a question, offer insight, share comments, seek advice and collaborate with others connected to USLAW. Please check out USLAW on Twitter @uslawnetwork and our LinkedIn group page.
FALL | WINTER | 2018
35 Million Reasons to Heed New SEC Guidance on Cybersecurity Disclosure pg28 Requirements
ATTORNEY -CLIENT PRIVILEGE
Is the Attorney-Client Privilege Under Attack?
LOCKING THE PLAINTIFF IN
Accident Demonstrations in Product Liability Litigation
BEFORE YOU SEAL THE DEAL Multiemployer Pension Plan Can Impact An Asset Purchase
Donâ€™t Let the Disappearing Act Catch You by Surprise in Discovery
USLAW Magazine is an in-depth publication produced twice annually and designed to address legal and business issues facing commercial and corporate clients. Released in Spring and Fall, recent topics have covered cyber security & data privacy, medical marijuana & employer drug policies,management liability issues in the face of a cyberattack, defending motor carriers performing oversized load & heavy haul operations, employee wellness programs, social media & the law, effects of electronic healthcare records, patent troll taxes, allocating risk by contract and much more. USLAW Magazine+, a digital-only magazine, was added in summer 2019 with digital-only issues scheduled for each summer and winter.
A wealth of knowledge offered on demand, USLAW EduNet is a regular series of interactive webinars produced by USLAW practice groups. The one-hour programs are available live on your desktop and are also archived at USLAW.org for viewing at a later date. Topics range from Medicare to Employment & Labor Law to Product Liability Law and beyond.
The Class Action Attack upon the Motor Carrier Industry:
Defending against Independent Contractor Classification Claims, and Wage and Hour Cases
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USLAW MEMBERSHIP DIRECTORY
Each year both print and online versions of our membership directory is produced. Here you can quickly and easily identify the attorney best-suited to handle your legal issue. Arranged by state, listings include primary and alternate contacts, practice group contact information as well as firm profiles.
The USLAW NETWORK Rapid Response App locates USLAW attorneys quickly when timeliness is critical for you and your company. Offered for Transportation, Construction Law and Product Liability, this resource provides clients with attorneys’ cell and home telephone numbers along with assurance that USLAW will be available 24/7 with the right person and the right experience. Available at uslaw.org and the USLAW 24/7 App.
CLIENT LEADERSHIP COUNCIL AND PRACTICE GROUP CLIENT ADVISORS
Take advantage of the knowledge of your peers. USLAW NETWORK’s Client Leadership Council (CLC) and Practice Group Client Advisors are a hand-selected, diverse group of prestigious USLAW firm clients who provide expertise and advice to ensure the organization and its law firms meet the expectations of the client community. In addition to the valuable insights they provide, CLC members and Practice Group Client Advisors also serve as USLAW ambassadors, utilizing their stature within their various industries to promote the many benefits of USLAW NETWORK.
USLAW prides itself on variety. Its 6,000+ attorneys excel in all areas of legal practice and participate in USLAW’s nearly 20 substantive active practice groups and communities including Banking & Financial Services, Commercial Law, Complex Tort and Product Liability, Construction Law, Data Privacy & Security, E-Discovery, Employment & Labor Law, Energy/Environmental, Healthcare Law, Insurance Law, International Business & Trade, IP and Technology, Professional Liability, Retail and Hospitality Law, Transportation and Logistics, White Collar Defense, Women’s Connection, and Workers’ Compensation. Don’t see a specific practice area listed? No worries as USLAW firms cover the gamut of the legal profession and we are sure to find a firm that has significant experience in the area of need.
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THANK YOU PARTNERS
2 0 19 USLAW Corporate P artn e r s
OFFICIAL TECHNICAL FORENSIC ENGINEERING AND LEGAL VISUALIZATION SERVICES PARTNER
HHH HH USLAW PREMIER PARTNER
www.SEAlimited.com 7001 Buffalo Parkway Columbus, OH 43229 Phone: (800) 782-6851 Fax: (614) 885-8014 Chris Torrens Vice President 795 Cromwell Park Drive, Suite N Glen Burnie, MD 21061 Phone: (800) 635-9507 Email: ctorrens@SEAlimited.com Ami Dwyer, Esq. General Counsel 795 Cromwell Park Drive, Suite N Glen Burnie, MD 12061 Phone: (800) 635-9507 Email: adwyer@SEAlimited.com Richard R. Basom Director, National Accounts/London 7001 Buffalo Parkway Columbus, Ohio 43229 Phone: (800) 782-6851 Email: rbasom@SEAlimited.com S-E-A is proud to be the exclusive partner/sponsor of technical forensic engineering and legal visualization services for USLAW NETWORK. A powerful resource in litigation for nearly 50 years, S-E-A is a multi-disciplined forensic engineering, fire investigation and visualization services company specializing in failure analysis. S-E-A’s full-time staff consists of licensed/registered professionals who are experts in their respective fields. S-E-A offers complete investigative services, including: mechanical, biomechanical, electrical, civil and materials engineering, as well as fire investigation, industrial hygiene, visualization services, and health sciences—along with a fully equipped chemical laboratory. These disciplines interact to provide thorough and independent analysis that will support any subsequent litigation. S-E-A’s expertise in failure analysis doesn’t end with investigation and research. Should animations, graphics, or medical illustrations be needed, S-E-A’s Imaging Sciences/Animation Practice can prepare accurate demonstrative pieces for litigation support. The company’s on-staff engineers and graphics professionals coordinate their expertise and can make a significant impact in assisting a judge, mediator or juror in understanding the complex principles and nuances of a case. S-E-A can provide technical drawings, camera-matching technology, motion capture for biomechanical analysis and accident simulation, and 3D laser scanning and fly-through technology for scene documentation and preservation. In addition, S-E-A can prepare scale models of products, buildings or scenes made by professional model builders or using 3D printing technology, depending on the application. You only have one opportunity to present your case at trial. The work being done at S-E-A is incredibly important to us and to our clients – because a case isn’t made until it is understood. Please visit www.SEAlimited.com to see our capabilities and how we can help you effectively communicate your position.
U.S. Legal Support, Inc
OFFICIAL COURT REPORTING PARTNER
HHH HH USLAW PREMIER PARTNER
www.uslegalsupport.com 16825 Northchase Drive, Suite 900 Houston, TX 77060 Phone: (800) 567-8757 Fax: (713) 653-7172 Charles F. Schugart President & CEO 16825 Northchase Drive, Suite 900 Houston, TX 77060 Phone: (832) 201-3834 Email: email@example.com Pete Giammanco Executive VP & COO 16825 Northchase Drive, Suite 900 Houston, TX 77060 Phone: (818) 995-0600 Email: firstname.lastname@example.org Jim Cunningham Senior VP, Division President Midwest Region 200 West Jackson Boulevard, Suite 600 Chicago, IL 60606 Phone: (312) 236-8352 Email: email@example.com Shana Holton Senior VP, Division President West Region 575 Anton Blvd., Suite 400 Costa Mesa, CA 92626 Phone: (714) 955-4887 Email: firstname.lastname@example.org Headquartered in Houston, Texas, and founded in 1996, U.S. Legal Support is a privately held company with over 85 offices located across the United States. As one of the leading providers of litigation services, U.S. Legal Support is the only litigation support company that provides a full suite of court reporting solutions, record retrieval, interpreting & translations, trial services and transcription services to major insurance companies, corporations and law firms nationwide.
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2 0 19 USLAW Corporate P artn e r s
OFFICIAL E-DISCOVERY, CYBERSECURITY AND DATA FORENSICS PARTNER
OFFICIAL JURY CONSULTANT AND COURTROOM TECHNOLOGY PARTNER
www.consilio.com 1828 L Street, NW Suite 1070 Washington, DC 20036 Phone: (877) 714-6204
www.litigationinsights.com 9393 W. 110th Street, Suite #400 Overland Park, KS 66210 Phone: (913) 339-9885 Twitter: @LI_Insights
Bryan Duberow Managing Director (West Region) Email: email@example.com
Merrie Jo Pitera, Ph.D. Chief Executive Officer Phone: (913) 486-4159 Email: firstname.lastname@example.org
Greg Lutz Managing Director (East Region) Email: email@example.com Roger Miller Managing Director (Central Region) Email: firstname.lastname@example.org Michael Pontrelli Managing Director (West Region) Email: email@example.com Andrew Stone Managing Director (Central Region) Email: firstname.lastname@example.org Consilio is proud to be the official eDiscovery, cybersecurity and data forensics partner of USLAW NETWORK. Consilio is a global leader in eDiscovery, risk management and compliance, document review, and legal consulting services. The company assists legal departments of multinational corporations and their outside counsel to respond to legal matters, reduce legal spend, minimize risks, and operate more efficiently using innovative software, costeffective managed services, and deep legal and regulatory industry expertise across a spectrum of industries. Consilio and its global family of companies, DiscoverReady, Advanced Discovery, Altep, Millnet Document Services and Legal Placements Inc., employ leading professionals in the industry, applying defensible workflows with patented and industry-proven technology across all phases of the eDiscovery and risk management lifecycle. ISO 27001:2013 certified, the company operates offices, document review facilities, and data centers across Europe, Asia, and North America.
Adam Bloomberg Vice President – Managing Director of Visual Communications Phone: (214) 658-9845 Email: email@example.com Jill Leibold, Ph.D. Director of Jury Research Phone: (310) 809-8651 Email: firstname.lastname@example.org Christina Marinakis, J.D., Psy.D. Director – Jury Research Phone: (443) 742-6130 Email: email@example.com Since 1994, Litigation Insights has been a nationally recognized leader in the trial consulting field. Litigation Insights is proud to be the exclusive corporate sponsor of jury research and courtroom technology services for USLAW NETWORK. Our clients hire us when their cases are complex, difficult and/or unclear. They bring us in when issues are volatile, emotions are high, and millions of dollars are at risk. We’re asked to consult on tough litigation because we’ve seen so many tough cases and, more importantly, we’ve provided valuable insights. Remember, not every case needs a mock trial. We also support your litigation efforts with smaller budget services such as theme development, witness preparation, voir dire and jury selection. Our courtroom consultants, or “Hot Seat” operators, have no fewer than 12 years of experience in the application of industry-leading presentation software and equipment, as well as an advanced knowledge of courtroom protocol and procedure. We make a point of learning the case facts, becoming familiar with your exhibits and video depositions, and we work closely with the trial attorneys to provide continuity and peace of mind. Litigation Insights has been certified as a Women’s Business Enterprise by the Women’s Business Enterprise National Council (WBENC). For more information on how can help with jury research and/or courtroom technology support, please contact any of our executive staff listed above.
Marshall Investigative Group OFFICIAL INVESTIGATIVE PARTNER
www.mi-pi.com 401 Devon Ave. Park Ridge, IL 60068 Phone: (855) 350-6474 (MIPI) Fax: (847) 993-2039 Doug Marshall President Email: firstname.lastname@example.org Adam M. Kabarec Vice President Email: email@example.com Matt Mills Vice President of Business Development Email: firstname.lastname@example.org Thom Kramer Director of Internet Investigations Email: email@example.com Amie Norton Business Development Manager Email: firstname.lastname@example.org Liva Rivera Business Development Consultant Email: email@example.com Marshall Investigative Group is a national investigative firm providing an array of services that help our clients mediate the validity of questionable cargo, disability, liability and workers’ compensation claims. Our specialists in investigations and surveillance have a variety of backgrounds in law enforcement, criminal justice, military, business and the insurance industry. Our investigators are committed to innovative thinking, formative solutions and detailed diligence. One of our recent achievements is leading the industry in Internet Presence Investigations. With the increasing popularity of communicating and publishing personal information on the internet, internet presence evidence opens doors in determining the merit of a claim. Without approved methods for collection and authentication this information may be inadmissible and useless as evidence. Our team can preserve conversations, photographs, video recordings, and blogs that include authenticating metadata, and MD5 hash values. Our goal is to exceed your expectations by providing prompt, thorough and accurate information. At Marshall Investigative Group, we value each and every customer and are confident that our extraordinary work, will make a difference in your bottom line. Services include: • Activity/Background Checks • AOE / COE • Asset Checks • Bankruptcies • Contestable Death • Criminal & Civil Records • Decedent Check • Health History
• Intellectual Property Investigations • Internet Presence Investigations • Pre-Employment • Recorded Statements • Skip Trace • Surveillance
www.uslaw.org 4 9
MDD Forensic Accountants
Structured Financial Associates, Inc
www.mdd.com 11600 Sunrise Valley Drive, Suite 450 Reston, VA 20191 Phone: (703) 796-2200 Fax: (703) 796-0729
www.sfainc.com 3060 Peachtree Road, NW Suite 1150 Atlanta, GA 30305 Phone: (770) 393-1028 Fax: (770) 393-4432 Toll Free: (800) 638-5890
OFFICIAL FORENSIC ACCOUNTANT PARTNER
David Elmore, CPA, CVA 11600 Sunrise Valley Drive, Suite 450 Reston, VA 20191 Phone: (703) 796-2200 Fax: (703) 796-0729 Email: firstname.lastname@example.org Kevin Flaherty, CPA, CVA 10 High Street, Suite 1000 Boston, MA 02110 Phone: (617) 426-1551 Fax: (617) 426-6023 Email: email@example.com Matson, Driscoll & Damico is a leading forensic accounting firm that specializes in providing economic damage quantification assessments for our clients. Our professionals regularly deliver expert, consulting and fact witness testimony in courts, arbitrations and mediations around the world. We have been honored to provide our expertise on cases of every size and scope, and we would be pleased to discuss our involvement on these files while still maintaining our commitment to client confidentiality. Briefly, some of these engagements have involved: lost profit calculations; business disputes or valuations; commercial lending; fraud; product liability and construction damages. However, we have also worked across many other practice areas and, as a result, in virtually every industry. Founded in Chicago in 1933, MDD is now a global entity with over 40 offices worldwide. In the United States, MDD’s partners and senior staff are Certified Public Accountants; many are also Certified Valuation Analysts and Certified Fraud Examiners. Our international partners and professionals possess the appropriate designations and are similarly qualified for their respective countries. In addition to these designations, our forensic accountants speak more than 30 languages. Regardless of where our work may take us around the world, our exceptional dedication, singularly qualified experts and demonstrated results will always be the hallmark of our firm. To learn more about MDD and the services we provide, we invite you to visit us at www.mdd.com.
OFFICIAL STRUCTURED SETTLEMENT PARTNER
Richard Regna, CSSC CEO/President 3060 Peachtree Road, NW, Suite 1150 Atlanta, GA 30305 Phone: (800) 638-5890 Email: firstname.lastname@example.org John Machir Chief Marketing Officer 7255 E. Griswold Road Scottsdale, AZ 85258 Phone: (800) 638-5890 Email: email@example.com Structured Financial Associates, Inc. is honored to be USLAW’s exclusive partner for structured settlement services. Structured Financial Associates, Inc. (“SFA”), a founding leader in the structured settlement business, takes a multifaceted approach to claims resolution. The use of structured settlement annuities to provide consistent income to injured parties while honoring the business practices of our client partners is the core of our business model. SFA consultants assist in the establishment and funding of other settlement tools, including Special Needs Trusts and Medicare Set-Aside Arrangements, and SFA is strategically partnered to provide innovative market-based, tax-efficient income solutions for injured plaintiffs and their legal counsel. Structured Financial Associates, Inc. was founded in 1985 and is one of the largest structured settlement companies in the industry. SFA is a member of Integrated Financial Settlements (IFS) and has more than 60 structured settlement consultants with offices in every major metropolitan area of the country. SFA’s full-service operations and support teams are comprised of veterans of the settlement industry and are dedicated to providing superior service to its customers throughout the United States. Our knowledge and ability to create comprehensive and tailor-made solutions makes SFA invaluable to defense clients, injured plaintiffs and their attorneys.
THANK YOU PARTNERS
2 0 19 USLAW Corporate P artn e r s
We’ve been prepping for your next case for nearly 50 years. S-E-A’s engineers, technicians and investigators have conducted independent and objective evaluations and analyses to produce real answers and articulate them in court since 1970. For more information, call 800.782.6851 or visit www.SEAlimited.com. Proud Partner USLAW NETWORK Inc. since 2004.
REVEALING THE CAUSE. MITIGATING THE RISK. Engineering, Investigation and Analysis since 1970
USLAW Magazine+ is an in-depth publication designed to address legal and business issues facing commercial and corporate clients. In this is...
Published on Jul 24, 2019
USLAW Magazine+ is an in-depth publication designed to address legal and business issues facing commercial and corporate clients. In this is...