USLAW Magazine - Winter 2021/2022

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WINTER • 2021/2022

Do You Have the Right Cyber Insurance for Your Business?

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The Historic Cannabis Administration and Opportunity Act Could Finally End Federal Cannabis Prohibition p 18

p8

Material Price Escalation: What is a Contractor to Do? P1

Attorney-Client Privilege and Communications With Third Parties P 14

For Your Eyes Only:

Preventing the Discoverability of Forensic Reports in Data Breach Litigation

p 32


After 50 years, can we keep our edge?

Can we keep innovating?

Can we continue to lead?

Can we get better?

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Celebrating over 50 years of finding the truth. The truth is, being an industry leader is never easy. In over 50 years, S-E-A has pretty much done it all. Forensic engineering and investigation. Vehicle testing and safety. Consumer product testing and health sciences. Just to name a few. And we do it all with the best talent and technology in the business. So, yeah. We’ll blow out some candles. And we’ll eat some cake. Then we’ll get back to working on the next 50 years. Congratulations to our partner, USLAW NETWORK, on 20 successful years!

Know. +1.800.782.6851 © 2021

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WINTER 2021/2022

ta b le o f

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contents Navigating the Legal Risks of a Mandatory Vaccine Program for Employees

FLEXING YOUR MUSCLES FITNESS CLUB WAIVERS p4

p 10

Ruckus in the Marketplace p2

FEATURES: Material Price Escalation – What is a Contractor to Do?

By Jared Cohane • Hinckley Allen.................................................................................. page 2

Why Every Employer Needs Arbitration Agreements with its Workers

By Noel D. Humphreys • Connell Foley LLP .................................................................... page 6

Do You Have the Right Cyber Insurance for Your Business?

By Robert Tugander • Rivkin Radler LLP.......................................................................... page 8

Public Service Announcement: If You Own a Closely Held Business Entity, You Have Waived Fifth Amendment Rights p20

Tips for Recreational Marijuana Use Policies in “Social Model” Assisted Living Residences P13

MODERN APPLICATION OF CALIFORNIA’S PRIVETTE DOCTRINE FOLLOWING NEW CALIFORNIA SUPREME COURT CASES

By Joshua W. Praw • Murchison & Cumming LLP ...................................................... page 22

FOREIGN CONCEPT: Do Foreign, Non-U.S. Citizen Workers Count as “Employees” When Determining Whether Title VII Applies?

By Jessica L. Dark and Jeffrey C. Hendrickson Pierce Couch Hendrickson Baysinger & Green, L.L.P.................................................... page 24

INSURANCE FOR IP DEFENSES AND CLAIMS: DON’T GET LEFT HOLDING THE BAG

My Boss the Algorithm – EU prepares legal framework to shape AI in the workplace

The weaponization of the spoliation of evidence doctrine

Hey Google! Where did the fire start?

By Brian McGraw • Middleton Reutlinger................................................................... page 10 By John Pion and Stephanie Hersperger Pion, Nerone, Girman, Winslow & Smith, P.C................................................................ page 12

Attorney-Client Privilege and Communications With Third Parties

By Tom Cronmiller, Sanjeev Devabhakthuni, and Matthew Paris Barclay Damon LLP........................................................................................................ page 14

Vaccines, Variants and Violence in the Workplace

By Melisa C. Zwilling and Brett Adair • Carr Allison..................................................... page 16

The Historic Cannabis Administration and Opportunity Act Could Finally End Federal Cannabis Prohibition

By Darren P. Grady • SmithAmundsen......................................................................... page 18

A Manufacturer’s Frozen Food Recall Has a Potentially Chilling Effect on Sales

By Dr. Jan Tibor Lelley, LL.M. and Diana Ruth Bruch • BUSE ....................................... page 26 By Nicholas Mahoney, P.E., CFEI, CVFI • S-E-A............................................................. page 28

Drafting a Diversity, Equity and Inclusion Policy for your Company

By Erin Nathan • Simmons Perrine Moyer Bergman PLC............................................. page 30

For Your Eyes Only: Preventing the Discoverability of Forensic Reports in Data Breach Litigation

By Karen Painter Randall and Steven Kroll • Connell Foley LLP................................... page 32

No More Finger-pointing: How Today’s Juries Are Emphasizing Personal Responsibility in Their Verdicts

By Clint Townson, Ph.D. • IMS Consulting & Expert Services....................................... page 34

Investigations and Surveillance for Settlement

By Doug Marshall • Marshall Investigative Group, Inc................................................ page 36

By Maria Geyer, CPA • MDD Forensic Accountants ..................................................... page 20

Transforming Claims Collaboration: Information Sharing for Structured Settlements

By Brad Cantwell • Arcadia Settlements Group ......................................................... page 21

DEPARTMENTS: From the Chair’s Desk................................................ page 1 faces of uslaw..........................................................page 40 firms on the move .....................................................page 42 Successful verdicts & transactions ........................page 44 diversity, equity and inclusion............................... page 47

pro bono Spotlight.................................................. page 48 About USLAW .............................................................page 49 USLAW NETWORK SourceBook......................................page 52 Spotlight on Corporate Partners.............................page 55

The articles contained herein are for informational purposes only and are not intended to be the basis for decisions in specific situations nor a substitute for legal counsel. Copyright © 2022 USLAW NETWORK, Inc. All rights reserved.


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from t h e

Chair’s Desk

Navigating the Legal Risks of Publisher RogerFLEXING M. Yaffe a Mandatory YOUR MUSCLES Vaccine Program FITNESS CLUB WAIVERS for Employees

Editor Connie Wilsonp4 p 10

Art Director Jeff Freibert • Compass Creative

BOARD OF DIRECTORS

Ruckus in the

Marketplace Rodney L. Umberger , Chair p2 Williams Kastner, Seattle, WA

Tips for Recreational Marijuana Use Policies in

“Social ” Assisted Amanda P. Ketchum, Vice Chair and PModel ractice Group Director Living Residences Public Service Announcement: Dysart Taylor Cotter McMonigle & Brumitt, P13P.C., Kansas City, MO If You Own a Closely Held Business Entity, You Have Waived Fifth Amendment Rights

Hi Folks! Welcome to the winter 2021/2022 issue of USLAW Magazine. As we put a cap on 2021 and our remarkable 20th anniversary year, I am eager to usher in a new year that promises more connections, creating new and strengthening existing friendships and focusing on moving business forward. We have experienced nearly 24 months like nothing we’ve had in our lifetime and will continue to work together as we navigate a pandemic environment for the foreseeable future. I am immensely proud of the unity demonstrated by our members and the tremendous collaboration we have had as a NETWORK – among members, clients and corporate partners - to support each other and deliver superior client resources, response and service wherever legal needs required.

p20abanas, Secretary/Treasurer Oscar J. C

Wicker Smith O’Hara McCoy & Ford P.A., Miami, FL

Tamara B. Goorevitz, Membership Management Director Franklin & Prokopik, P.C., Baltimore, MD

Jennifer D. Tricker, Assistant Treasurer Baird Holm LLP, Omaha, NE

Kenneth B. Wingate, Law Firm Management Director Sweeny, Wingate & Barrow, P.A., Columbia, SC

Bradley A. Wright, Client Liaison Director Roetzel & Andress, Cleveland, OH

Dan L. Longo, Immediate Past Chair

Murchison & Cumming LLP, Los Angeles, CA

Kevin L. Fritz, Chair Emeritus Lashly & Baer, P.C., St. Louis, MO

John D. Cromie, Chair Emeritus Connell Foley LLP, Roseland, NJ

Among the many resources we provide is USLAW Magazine. As you peruse the pages, you will see insights on a range of issues written by attorneys and our exclusive corporate partners. You will read about attorney-client privilege, vaccine variants and the workplace, DEI policies, forensic reports in data breach litigation, spoliation of evidence doctrine, cyber insurance considerations and so much more. This past year saw no shortage of these issues and more, so we hope you enjoy our latest magazine edition and read the timely updates and the latest from around the NETWORK.

René Mauricio Alva

Jeffrey L. O’Hara

Douglas W. Clarke

Larry A. Schechtman

Keely E. Duke

Thomas S. Thornton, III

EC Rubio Chihuahua, México

Therrien Couture JoliCoeur L.L.P. Montreal, Quebec, Canada Duke Evett, PLLC Boise, ID

Stanford P. Fitts Strong & Hanni, PC Salt Lake City, UT

Jessica L. Fuller Lewis Roca Denver, CO

Merton A. Howard

USLAW was founded 20 years ago, and we have grown from six member firms to an expansive network of nearly 100 firms from coast to coast and in Canada, Latin America, China and with affiliates in Europe via TELFA. I am honored to serve as Chair as we embark on our next decade of client-focused, collaborative and efficient legal support for our clients across the spectrum of industries and regions.

Hanson Bridgett LLP San Francisco, CA

Michael A. Ludwig

Jones, Skelton & Hochuli, P.L.C. Phoenix, AZ

Connell Foley LLP Roseland, NJ SmithAmundsen Chicago, IL Carr Allison Birmingham AL

Frederick M. Heiser

Future Leaders Representative Klinedinst PC Irvine, CA

Earl W. Houston, II

Diversity Council Representative Martin, Tate, Morrow & Marston, P.C. Memphis, TN

Karen A. Verkerk

TELFA Representative Dirkzwager Legal & Tax Arnhem, Netherlands

Robyn F. McGrath

Sweeney & Sheehan, P.C. Philadelphia, PA

Thomas L. Oliver, II, Chair Emeritus Carr Allison, Birmingham, AL

Lew R. C. Bricker, Chair Emeritus

Please be in touch with us if we can assist you with any legal matters.

SmithAmundsen LLC, Chicago, IL

Thank you for your continued support of USLAW. On behalf of everyone at USLAW, we wish you a wonderful new year. Sincerely, Roger M. Yaffe, Chief Executive Officer

roger@uslaw.org, (800) 231-9110, ext. 1 Michelle Besu, Director of Meetings and Events

Rodney L. Umberger USLAW NETWORK Chair Williams Kastner | Seattle, Washington

michelle@uslaw.org, (800) 231-9110, ext. 2 Jennifer Randall, Membership Services Manager

jennifer@uslaw.org, (800) 231-9110, ext. 3 Connie Wilson, Communications Specialist

connie@uslaw.org, (800) 231-9110, ext. 4 Paige Thompson, Membership Services Coordinator

paige@uslaw.org, (800) 231-9110, ext. 5 uslaw.org • Phone/Fax 800.231.9110


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WINTER 2021/2022 USLAW MAGAZINE U S L A W

MaterialPrice Escalation What is a Contractor to Do? Jared Cohane

The fallout from the COVID-19 pandemic continues to plague the construction industry in many ways, but perhaps the most significant erosion to the contractor’s bottom line has come in the form of market volatility for construction materials. The lack of materials due to worldwide supply chain impacts, as well as increased production costs and tariffs, have caused prices for building materials to soar to unprecedented heights. The usual suspects for

Hinckley Allen

price escalation – steel, copper, lumber, engineered wood products and plastic-based materials – have seen wild price fluctuation over the past six months to a degree not seen in decades. In the traditional hard bid, fixed price contracting project delivery method, the contractor usually bears the financial risk of material price fluctuation. That volatility not only threatens a contractor’s profit margin on a given project but also, in some cases, the ongoing viability

of some construction firms. Here are some strategies to deal with the economic uncertainty of the current market. SEEKING CONTRACTUAL RELIEF FOR PRICE ESCALATION Fixed price contracts, including unit prices or even cost reimbursable contracts with guaranteed maximum prices, remain equally exposed to market volatility because in the end, it is the contractor that bears the


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risk of only being paid up to the final fixed price. The only sure-fire manner in which to insulate against price escalation is through negotiation of a material escalation clause. A typical escalation provision acknowledges that the contract price is based on current pricing for building materials but that certain building materials are considered subject to sudden price increases. Escalation provisions provide for an equitable adjustment if the price increases exceed a certain threshold percentage of the as-bid price. In some instances, material escalation clauses provide for adjustment due to price increases realized from the day the contract is executed by the parties. Such a provision is commonly referred to as a “Day One Escalation” provision and provides that the material prices shall be reimbursed for actual cost of material from the date of purchase plus reasonable overhead and profit – essentially converting the material procurement component to a “costplus” scenario. Owners desire price certainty and will typically push back against negotiating price escalation clauses, particularly “Day One” or cost-plus types of clauses. One negotiating strategy to make an escalation provision more palatable to an owner is to limit the provision to specific types of materials (i.e., copper, engineered lumber products) based upon a threshold percentage of increase from the as-bid price. Another strategy is to include a commensurate savings provision that accounts for any decrease in pricing for materials to the owner’s benefit. These options, of course, require cost transparency, adding another administrative level to the billing process, but offer an equitable measure of protection for both sides. Another option that might already exist in a typical construction contract is the delay provision, which could provide for an equitable adjustment for material cost increases realized due to project delays beyond the control of the contractor. However, contractors need to be mindful of “no damages for delay provisions,” which can legally undermine a request for equitable adjustment for price increases incurred due to project delay. Many jurisdictions have common law exceptions to “no damage for delay” provisions, but in an ideal situation, contractors can negotiate express exceptions to account for price escalation. Contracts containing “time is of the essence” provisions are another potential delay-related avenue for relief from significant material price increases. Typically, these timing provisions are bilateral – the contractor’s commitment to completing the project on time and the owner’s com-

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mitment to providing complete and accurate design information and access to work fronts in keeping with the as-planned construction schedule are opposing sides of the same coin. If a contractor is able to lock in pricing with material suppliers for a given period based upon the anticipated procurement and construction schedule, it could potentially preserve and strengthen a price escalation claim should there be an event of excusable and/or compensable delay. Another strategy is to negotiate a financial contingency for material escalation. The contingency can identify specific types of construction material - such as copper or engineered wood products that are traditionally unstable - and set a threshold percentage of increase in pricing that affords the contractor the opportunity to tap into this contingency. The contingency is for the benefit of the contractor but offers some cost certainty and dispute avoidance for the owner. Finally, negotiating a provision for upfront procurement and storage of materials is another means of protection. Such a provision allows the contractor to procure materials at the very beginning of the job to ensure the procurement occurs while the material supplier’s quoted price at the time of bid remains viable. The contractor receives partial payment for stored materials, and the owner obtains assurance that no claim for material escalation will arise later in the job. OTHER STRATEGIES FOR DEALING WITH PRICE ESCALATION PROBLEMS While the contract strategies discussed above are the ideal manner in which to deal with price escalation problems, in this competitive market it is difficult for contractors to find the negotiating power to leverage the inclusion of price escalation clauses into their contracts. For instance, the standard AIA contract forms widely used in the construction industry do not contain a price escalation provision, so the contractor needs to be prepared to negotiate its inclusion. However, there is often little incentive on the part of the owner to capitulate to the addition of any provisions that result in cost uncertainty from the owner’s perspective. Therefore, the pressure on the estimating team to find creative ways to account for material escalation while remaining competitive is significant. Negotiating with material suppliers for extended fixed pricing windows is another way a contractor can limit price volatility risks. This is obviously dependent upon the contractor’s relationship and negotiating strength with its suppliers. Negotiating a 60-90 day hold on pricing at a minimum is

critical, especially in circumstances where there is a delay between the bid and the start of construction. Qualifying bid pricing to the owner based upon negotiated windows of held pricing from suppliers is essential to preserving delay-related price increase claims. But that strategy could be fraught with risk, as qualifying the bid could result in its rejection for being non-responsive. Ultimately, if a qualified bid is accepted, it is essential to ensure that the proposal is incorporated into the contract. If all else fails, there remains potential recourse under change of law, cardinal change or force majeure provisions often included in construction contracts. Change of law provisions offer the strongest option for recapturing price increases in circumstances where the contractor can demonstrate that a change in tariffs or other regulations affecting the trade of construction goods internationally result in an unforeseen cost increase. Price increases alone typically do not support a cardinal change or force majeure event absent extenuating, unforeseeable circumstances. The early impacts of the COVID-19 pandemic are an example where a force majeure clause has been utilized as a legal basis for pushing material cost increases upstream. However, we have been living in the COVID-19 world for more than 18 months, and the strength of the force majeure argument has waned significantly, particularly for projects that bid during the height of COVID once bidding contractors had gained a better understanding of the cost impacts posed by the pandemic. In the end, open dialogue between contractors and owners during the bid phase to address the economic uncertainty of the current times in a fair and equitable manner remains the best practice for all concerned. By fairly allocating this risk in the beginning, the parties can avoid impacts during construction and, ultimately, litigation. Litigation avoidance is a strategy that proves mutually beneficial to owners and contractors alike. Jared Cohane is a partner in Hinckley Allen’s Construction & Public Contracts practice group. His practice is focused in construction, with special emphasis on construction contract claims. While he represents primarily general contractors, he has represented all aspects of the construction industry, including specialty subcontractors, owners, design professionals and sureties.



STATE RESEARCH


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WINTER 2021/2022 USLAW MAGAZINE U S L A W

Why Every Employer Needs Arbitration Agreements with its Workers Noel D. Humphreys

Consider these scenarios: At the office holiday party, the head of the company held a woman down and kissed her although she said she didn’t want to be kissed. She reported the incident to HR, which investigated half-heartedly. Subsequently, a companywide policy of arbitration agreements was instituted for all employees. She signed the arbitration agreement to keep her job. Then they fired her. At least that’s the allegation.

Connell Foley LLP

As a plaintiff against the individual and the company, the woman wants the testimony about these events to occur in a courtroom open to the public. The company wants to enforce the arbitration agreement to keep the testimony confidential. In another matter, drivers who use a ridesharing app claim the technology company does not treat them properly: they receive no benefits or overtime, they incur expenses, they do not collect unemploy-

ment if they get fired, and the like. When the driver relationship starts, the driver signs an agreement that requires arbitration of disputes between the driver and the company to be conducted driver by driver, rather than between the company and the drivers collectively. In another matter, workers say their large employer systematically pushed out older workers to allow the company to hire younger workers who formed a cheaper


USLAW

pool for health insurance premiums, who connected more easily with customers and who were savvier with newer technology. Such situations occur in many workplaces. Companies accused in these settings say they benefit from agreements that require dispute resolution through one-onone arbitration and ones that aggressively address treatment of confidential information. The behind-closed-doors nature of arbitration proceedings and awards ranks high on the list of important considerations, along with the general propositions that arbitration may be, as a rule, faster, cheaper and less intimidating than litigation. The United States Supreme Court has found “a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary.” As a result, federal courts have adopted policies and practices that promote arbitration conducted privately between contracting parties on the unspoken assumption that courts must treat companies and workers as having similar bargaining power. Furthermore, the Supreme Court stated, “The Courts of Appeals have …consistently concluded that questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration. We agree. The Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16, establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay or a like defense to arbitrability.” That is why federal courts everywhere have enforced agreements providing for arbitration of disputes by minimizing or overlooking inconvenient factors. Those who buy services, whether from independent contractors or employees, are therefore well advised to capitalize on this governmental policy. This governmental preference also fits with the good practice of protecting trade secrets by means of confidentiality agreements, also known as non-disclosure agreements or “NDAs.” Today, the facts on which profits depend often constitute an organization’s most valuable asset. Well-run companies enforce policies that employees and independent contractors must sign agreements whereby a worker promises to keep secret things secret, that new ideas a worker develops belong to the company and that, if a dispute arises, the worker and the organization must settle it out of court. Such agreements often contain promises that the

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worker will not act collectively with similarly situated individuals. A recent California federal appellate court decision illustrates the kinds of choices courts make to effectuate this governmental policy. In that matter, Mr. Capriole drove a car for Uber in Massachusetts. The agreement with Uber that he signed when he became an Uber driver classified him as an independent contractor and included a provision requiring arbitration of disputes. Mr. Capriole’s purported class consisting of Massachusetts Uber drivers asserted that, under Massachusetts law, he and his fellow drivers should be treated as employees rather than as gig workers. Uber got the case moved to California from Massachusetts thanks to the agreement’s forum-selection clause. The California federal district court ordered arbitration to enforce the agreement, and the Ninth Circuit panel affirmed. Judges from across the political spectrum have supported these policy choices. In fact, in Mr. Capriole’s case, the appellate panel consisted of judges appointed by Democratic presidents, including Presidents Clinton and Obama. The opening of the panel’s written decision showed the outcome as a foregone conclusion. Judge Kim McLane Wardlaw, the opinion’s author, cast the matter as a clash between the internet’s “technological revolution” and “laws designed for the analog age.” The decision suggests that “technological advances” inevitably make workers like Uber drivers independent contractors. The FAA requires courts to hold arbitration contracts to the same standards as other contracts, meaning that courts must enforce Uber’s contract with its independent contractors as written unless the FAA exception for seamen, railroad employees, or any other class of workers “engaged” in foreign or interstate commerce encompasses drivers. Therefore, the panel’s fundamental question was whether the court should treat Massachusetts Uber drivers as members of a “class engaged” in foreign or interstate commerce. If treated as members of such a class, they would not be required to go to arbitration. The decision says that the court joins a “growing majority of courts holding that Uber drivers as a class” do not fall within the class of workers engaged in foreign or interstate commerce. First, the Supreme Court has said courts are supposed to give the FAA’s “residual” class a “narrow” construction. A narrow construction means that “[t]he plain meaning of the words ‘engaged in commerce’” … “is narrower than

the more open-ended formulations ‘affecting commerce’ and ‘involving commerce.’” The court’s “analysis focuses on the inherent nature of the work performed and whether the nature of the work primarily implicates inter- or intrastate commerce,” the decision said. Uber had argued elsewhere, among other things, that Uber drivers carried passengers, and that seamen and railroad workers carried freight. The Third Circuit and the Ninth Circuit have now rejected that argument in other cases. Although plaintiff Capriole’s class action purportedly included only Massachusetts drivers, the court explicitly chose to treat Uber drivers everywhere as a single class. Previously, courts had dealt with nationwide classes, and the court saw “no reason for our analysis to change, where, as here, we face only a putative statewide class.” The statutory language does not geographically define seamen and railroad workers, therefore, for purposes of plaintiff Capriole’s case, the “category of workers must similarly be assessed at a nationwide level, rather than any narrow, geographic region.” The court said that it would undermine “certainty and predictability which arbitration agreements are meant to foster” if the court were to treat Uber drivers in some states or locales differently from other Uber drivers. Such a result would produce “absurd” results, the court said. Apparently, nationwide, Uber drivers begin or end about 10 percent of their trips at airports. That level of activity was insufficient to make likely interstate or foreign commerce central enough to Uber drivers’ work in Massachusetts to make them “engaged” in interstate commerce under a narrow reading of the statutory exception. Mr. Capriole’s case illustrates that federal courts make choices when deciding cases that tend to favor outcomes that lead to arbitration and away from court. By requiring incoming employees to agree to arbitration for any disputes that may arise in the employment setting, employers can take advantage of this pattern in the law to reap the benefits of arbitration, such as confidentiality, speed, expense and avoidance of class actions. Noel Humphreys is Of Counsel in the Roseland, New Jersey, office of Connell Foley LLP. His practice focuses on business and lending transactions, organizational governance, intellectual property, and employment contracts and consulting and services arrangements.


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WINTER 2021/2022 USLAW MAGAZINE U S L A W

Do You Have the Right Cyber Insurance for Your Business? Robert Tugander

Businesses today recognize the importance of having insurance to hedge against cyber losses. And as cyber claims increase, so do decisions by courts interpreting cyber insurance policies. But similar crimes under similar policies have yielded different coverage results. Why the different outcomes? Sometimes the facts differ. Subtle differences in how a crime was committed can have a big impact on coverage. Sometimes, the policy language differs. And sometimes, courts simply interpret similar clauses differently. In many cases, however, the policyholder failed to purchase endorsements that would have covered the specific crime. A commercial crime policy, for example, may offer protection for Computer Transfer Fraud, Social Engineering Fraud, Funds Transfer Fraud, and Forgery or Alteration coverage, to name a few. And while these coverages may share similar names, they cover different types of losses. Knowing available coverage options

Rivkin Radler LLP

and how courts have interpreted these provisions can help companies decide how to best manage their cyber risks. A few cases decided within the past year are instructive. FORGERY OR ALTERATION COVERAGE A Forgery or Alteration endorsement typically insures against losses resulting directly from forgery or alteration of a check, draft, promissory note, or similar written promise. A recurring issue is whether a fraudulent email directing an employee to wire funds is the type of forged instrument addressed by the Forgery or Alteration endorsement. Most courts have found that it is not.1 The endorsement limits its coverage to negotiable instruments. An email telling an employee to wire money to a bank account simply does not have the same legal effect as a check, draft or promissory note. Earlier this year, two courts interpreted this endorsement where the forgery was

more intrusive. Instead of just an email duping an employee to send the wire instructions, the thieves hacked into the policyholders’ email accounts. In one case, the thieves intercepted emails transmitting real invoices and attached them to a counterfeit email misdirecting payment.2 In another case, the hackers cut and pasted signatures on wire transfer authorization forms and used the company’s email system to send those authorizations to banks.3 But these factual differences did not change the outcome. The Forgery or Alteration provision still did not cover the loss. The invoices were not endorsable instruments payable upon tender in the same way as negotiable instruments. And the forged wire transfer authorization form, like a fraudulent email, was not itself negotiable, but merely directed the bank to act. So then, what coverage is available for losses from fraudulent instructions to wire money?


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FUNDS TRANSFER FRAUD/COMPUTER TRANSFER FRAUD COVERAGE The company that had its invoices intercepted recovered some of its losses because it also purchased Funds Transfer Fraud coverage. These clauses, subject to variation, cover losses resulting directly from the use of a computer to fraudulently cause a transfer from inside the company’s building or its bank to a place outside those premises. But a word of caution: Check the limits. The company’s Funds Transfer Fraud coverage carried relatively low limits, which caused it to look to the Forgery or Alteration endorsement in a failed attempt to cover the remainder of its losses. The company victimized by the forged wire authorizations opted not to purchase Funds Transfer Fraud coverage. The company could have eased its pain had it chosen to do so. What if the wire transfer occurs by way of an email that tricked an employee into sending the funds to the phony account? Do computer transfer fraud provisions cover this situation? The U.S. Court of Appeals for the Fifth Circuit took up this issue this past February.4 The insured’s CFO received an email attaching a letter from what he thought was a vendor. The email stated that future payments should be routed to a new bank account. The body of the email also contained previous emails between the company and its vendor concerning invoices and shipping details. The CFO authorized two wire transfers totaling more than $1 million, and those payments were made in accordance with the company’s three-step verification process. But the email was from an imposter, and the money was lost. At issue was the policy’s Computer Transfer Fraud provision. The court acknowledged that the scammers created a “fraudulent channel” that allowed them to monitor and alter emails sent between the company and its vendor. But the court found that manipulating emails did not constitute Computer Transfer Fraud because the scammers did not introduce data or programs that independently instructed

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the computer system to “act.” The Computer Transfer Fraud coverage did not apply for another reason. The transfer was not made without the insured’s knowledge or consent. Rather, three employees affirmatively authorized the transfer. By adding the knowledge requirement, the court explained, the policy limited coverage only to instances in which the computer itself is tricked into fraudulently transferring funds to a third party without the insured’s knowledge.5 SOCIAL ENGINEERING FRAUD The policyholder was not left completely holding the bag, however. The insurer paid the claim under the Social Engineering Fraud provision. As the Fifth Circuit noted, the Social Engineering Fraud provision covers situations in which an employee relies, in good faith, on a fraudulent instruction. In contrast, the Computer Transfer Fraud provision disclaims coverage for transfers made with the insured’s knowledge. Again, the limits are important. The Social Engineering Fraud coverage had a policy limit of only $100,000, compared to a $1 million limit for Computer Transfer Fraud. RANSOMWARE How do these policy provisions apply to ransomware attacks, where malicious computer code renders a victim’s computer useless by blocking access to programs and data? The Indiana Supreme Court recently interpreted a Computer Fraud provision that covered loss “resulting directly from the use of any computer to fraudulently cause a transfer of money” against the backdrop of a ransomware attack.6 After being locked out of its computer system, a company paid the hacker’s requested ransom with four bitcoin valued at about $35,000. The company believed that the hacker gained access to its system via a targeted spear-phishing email. The insurer denied the claim. The trial and intermediate appellate courts upheld the denial. The lower courts found that the

See, e.g., Taylor & Lieberman v. Federal Ins. Co., 681 F. App’x 627 (9th Cir. 2017); Metro Brokers, Inc. v. Transportation Ins. Co., 603 F. App’x 833 (11th Cir. 2015); Midlothian Enter., Inc. v. Owners Ins. Co., 439 F. Supp. 3d 737 (E.D. Va. 2020). 2 AIMS Ins. Prog. Mgrs., Inc. v. Nat’l Fire Ins. Co., No. 1 CA-CV 20-0032, 2021 Ariz. App. Unpub. LEXIS 123 (Ariz. Ct. App. Feb. 4, 2021). 3 Ryeco, LLC v. Selective Ins. Co., No. 20-3182, 2021 U.S. Dist. LEXIS 91186 (E.D. Pa. May 13, 2021). 4 Mississippi Silicon Holdings, LLC v. Axis Ins. Co., 843 F. App’x 581 (5th Cir. Feb. 4, 2021). 5 Taylor & Lieberman, 681 F. App’x at 629. 6 G&G Oil Co. of Indiana v. Continental Western Ins. Co., 165 N.E.3d 82 (Ind. 2021). 7 Causation is far from settled, however, as courts have reached varying conclusions on whether and when a loss is direct. 1

loss was not due to fraud, but rather theft, and that the ransom payment was voluntary and not directly from the use of a computer. The Indiana Supreme Court saw it differently. It first focused on the phrase “fraudulently cause a transfer.” It found that the phrase was unambiguous and means “to obtain by trick.” But the record was sparse, and the court could not determine if the hackers in fact gained entry to the company’s computers “by trick.” It sent the case back to the trial court to resolve the issue, cautioning that not every ransomware attack is necessarily fraudulent. If, for example, appropriate safeguards are lacking, a hacker could enter a company’s servers unhindered. The court also considered if the loss resulted directly from the use of a computer. Was computer use part and parcel of the entire scheme, or was the voluntary transfer of bitcoin an intervening cause that severed the causal chain? To answer this question, the court considered if the loss resulted “immediately or proximately without significant deviation from the use of a computer.” The court found that there was sufficient causation. In the court’s view, the insured consciously made the bitcoin payment but did so under duress. The court saw the bitcoin payment as nearly the immediate result, without significant deviation, from the use of a computer.7 After three attempts, the ransomware victim’s claim for coverage survived for another day. But all of that litigation, which still did not fully resolve the coverage issue, may have been avoided had the insured not declined the computer hacking and computer virus coverage that was available for purchase. So, what’s the lesson here? Different coverages are available to protect against specific types of cybercrime, but no single coverage provides full protection against all types of cybercrime. A company is wise to take a hard look at its existing insurance policies and determine if its coverage offers adequate protection against many of the common cyber risks. An insurance broker can help fill in any obvious coverage gaps.

Robert Tugander is a partner in Rivkin Radler LLP’s Insurance Coverage practice.


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INSURANCE FOR IP DEFENSES AND CLAIMS Don’t Get Left Holding the Bag Brian McGraw

Businesses today often receive the dreaded “cease and desist” letter from out of the blue, accusing it of violating intellectual property rights of some kind. This could range from a competitor’s letter claiming that your product design too closely resembles its alleged trade dress design to a non-practicing entity (NPE) or “troll” letter accusing you of unlawfully downloading a music file or infringing a patent that you have otherwise never heard of before. In any of these situations, you are likely faced with having to contact and hire outside legal counsel to provide advice and, potentially, defend you against the claims. Upon receipt of the IP cease and desist letter, your first question should be “is this claim covered by insurance?” On the flip side, imagine the situation where your company just invested a significant amount of money to obtain patent pro-

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tection for the next big idea or innovation that could change your business forever. And then, after getting that patent, you discover that a new competitor has come along and already tried to copy you. Do you have the resources to invest more to pursue legal action against that competitor? Consider that in its 2019 survey, the American Intellectual Property Law Association (“AIPLA”) estimates that the median cost for litigating a patent infringement case with less than $1 million at risk to be $700,000 (through appeal). For copyright infringement and trade secret cases with less than $1 million at risk, the median costs are $550,000. For trademark or trade dress infringement cases with less than $1 million at risk, the median costs are estimated at $275,000 to litigate. And these are the low-end numbers. As you can imagine, the costs of litigating IP cases with more than $1

million at risk can increase dramatically (estimated $4 million in litigation costs for patent infringement cases with more than $25 million at risk). Even if the claims asserted could be considered frivolous, it could still cost hundreds of thousands of dollars in defense fees just to get to a point in litigation where a favorable decision could be made. Make no mistake, intellectual property litigation can be a high-stakes game, and you have to pay to play. As a company that owns IP, in any form, it could be your company’s greatest asset. As your company’s most valuable asset, it should be protected at all costs. Conversely, if your company is faced with an infringement or misappropriation suit, that lawsuit could carry with it the risk of incurring staggering litigation costs and the prospects of an adverse judgment that could effectively wipe your company out from a financial


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perspective. In either of these situations, to effectively evaluate risk and potential opportunity, you must understand the possibility that insurance coverage could exist that might help you. Understanding and evaluating the insurance options available to you is critically important. IDENTIFYING POTENTIAL INSURANCE COVERAGE Most businesses maintain Commercial General Liability (“CGL”) insurance policies to protect from losses that could arise under a variety of circumstances. These CGL policies are the starting point for analyzing whether IP claims could be covered by insurance. The analysis of whether there is insurance coverage under an existing policy will largely depend on an interpretation of the specific CGL policy or policies at issue combined with an in-depth review of the type of legal claim being asserted as well as the conduct which is claimed to violate the respective IP rights at issue. Starting with the policies themselves, most CGL policies contain an “advertising injury” section. While the language of these provisions has changed over the years, generally speaking, the 2013 Insurance Services Office (“ISO”) standard CGL policy, which is the predominate CGL policy in place today (each insurance company adopts different language and some still use older, more insured friendly language), provides express coverage for “use of another’s advertising idea in the insured’s advertisement” and/or “infringing another’s copyright, trade dress, or slogan in the insured’s advertisement.” Compare that language to older policy forms such as the 1986 ISO, which extended coverage to advertising injuries which arose out of “misappropriation of advertising ideas or style of doing business; or infringement of copyright, title, or slogan.” Over the years, insureds have used the various advertising injury provisions to seek coverage, and courts around the country have broadly construed these provisions to provide some form of coverage for a number of claims, including claims for copyright infringement, trademark infringement, trade dress infringement, misappropriation of trade secrets, violation of the right of privacy, defamation, libel, slander, trade libel, false advertising and even patent infringement. The key to getting coverage has been showing that those claims arise from the advertising activities of the insured. Traditionally, this has involved asking whether the plaintiff alleges that it has suffered some injury as a result of some advertising-related activity (with “advertising” generally interpreted broadly by the courts),

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whether the insured’s actions did actually involve advertising in some form, and whether there was a connection between the plaintiff’s alleged injury and the advertising activity. When these questions can be answered in the affirmative, courts are likely to determine there is coverage (unless the claim is expressly excluded in the policy). The bottom line is that if you can tie the alleged infringing activity into advertising in some way, you very well may have coverage under an existing CGL policy. DO POLICY EXCLUSIONS APPLY? Now, the catch here as it relates to CGL coverage is that as courts have gotten more and more receptive to the idea that policies should be interpreted to cover IP-related claims, insurance companies have adapted and included express exclusions within the policy to address those arguments. Indeed, many of the recent ISO form policies expressly state that the four main IP-related claims (patent, trademark, copyright and trade secret) are excluded from coverage (unless those claims arise directly from advertising). It is also important to know that courts are not always consistent in their treatment of exclusion or coverage language. A court in California might interpret the language of a policy much differently than a court in Texas. The devil will always be in the details of the policy language, past decisions within that particular court, and the unique facts related to the claims at issue. SPECIALIZED IP COVERAGE IS AVAILABLE In light of the increase of exclusions for IP cases that are now included within standard ISO form policies, you should know about, and explore options as to, specialized insurance policies designed specifically for IP-related claims. Many companies offer policies that are designed to either cover situations where you are accused of infringement, in some form, or provide coverage for the enforcement of your IP rights. Regardless of the type of business involved, if there is a chance of facing an infringement allegation or a chance that you may need to file a lawsuit to enforce your rights, then standalone IP policies may be worth the investment. These types of policies can help you fill the coverage gaps that could exist with respect to your standard CGL policies. And frankly, they could mean the difference in preventing your company from facing enormous financial risk in litigation compared to comfortably defending or pursuing your legal claims with the backing of a sound insurance policy.

FINAL THOUGHTS With the potential rise in intellectual property litigation as the grip of the pandemic begins to lessen, and the recent proliferation of IP suits brought by NPE’s or “trolls,” businesses should be prepared. Investigating and evaluating whether there is existing insurance coverage for IP claims is the first step. Knowing what that coverage provides is the next. And, knowing that you might be able to obtain specialized coverage that will help protect your rights, and your assets, is important for those who own valuable IP rights. Be proactive in reviewing existing insurance policies and figure out if there are potential gaps in coverage. Know which policies might be applied to a particular IP infringement situation. Note that most CGL policies are “occurrence” based – meaning that even if you have an existing policy that excludes a claim for trademark infringement (as an example), you could have an older policy previously in place that did not have such an exclusion at the time in which the alleged infringing actions took place. Carefully evaluate claims that have been asserted against you. Know that if multiple claims are being asserted that if even one of those might trigger coverage, all of the claims could be covered. Know that courts are more likely to require coverage for the costs of defense as opposed to indemnifying you for a large judgment being entered, even if there is a reasonable question as to whether there is coverage. Contact counsel to assist you in your coverage evaluation. And most importantly, if there is a chance existing coverage might apply, promptly put your insurance company on notice of the potential claim. If you are not prepared and receive that surprise cease and desist letter from a copyright troll or find out that someone has tried to steal your company’s most valuable asset and you cannot afford to invest in the costs of litigation, you could be left holding the bag.

Brian McGraw is a director with Middleton Reutlinger in Louisville, Kentucky. He practices in intellectual property and commercial litigation with a particular focus on trademark infringement, copyright infringement, trade secret misappropriation, false advertising and patent infringement cases. Brian has litigated cases throughout the country, representing plaintiffs and defendants from Fortune 500 companies to individual artists and musicians.


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The weaponization of the spoliation of evidence doctrine The creation of liability or punitive damages claims where none otherwise exists

John Pion and Stephanie Hersperger

THE SCENARIO: DEFENDING A CLAIM THAT ONLY EXISTS BECAUSE OF SPOLIATION For anyone defending against claims or lawsuits, we all have had those occasions where we look at the facts, whether they relate to a product, a premise, a contract, or a motor vehicle accident, and reasonably believe there is no liability. But, as the case develops, evidence lost or misplaced opens the door for applying the Spoliation Doctrine, and suddenly, there is a monumental shift in the liability analysis. WHAT IS THE SPOLIATION DOCTRINE? “Spoliation” generally means the destruction, concealment or the failure to preserve evidence by one party that is relevant to a claim and hampers the other party’s ability to advance its position. The

Pion, Nerone, Girman, Winslow & Smith, P.C.

“Spoliation Doctrine” essentially permits a court to impose sanctions and remedies for spoliation of evidence. HOW HAS THE SPOLIATION DOCTRINE TRADITIONALLY BEEN UTILIZED? This legal doctrine is well-established and has been utilized by various Courts for hundreds of years. The Supreme Court of the United States addressed this issue as early as 1817 in the context of a ship’s captain throwing papers overboard and the impact of this under the Spanish Treaty of 1795. The Pizarro, 15 U.S. 227 (1817). In more modern times, this doctrine often has been used as a defense in products liability cases where the alleged defective product was not preserved, which prejudiced the defense in determining whether it was

defective and caused the alleged injuries. Schroeder v. Com., Dep’t of Transp., 710 A.2d 23 (Pa. 1998) (affirming summary judgment in favor of the defendants due to the plaintiff failing to preserve an allegedly defectively designed product). HOW IS THE SPOLIATION DOCTRINE CURRENTLY BEING UTILIZED? While the Spoliation Doctrine often has been used as a “shield” in products liability cases, in recent years, it is increasingly being used as a “sword” by claimants or plaintiffs in all types of cases, involving all types of evidence, including electronic data. Electronic evidence includes surveillance video, data in vehicles or trucks, and metadata on computers. Courts will apply this Doctrine to just about “anything” that is relevant to the claim and should have been


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preserved but was not, and the failure to preserve prejudices the other party. HOW THE FAILURE TO PRESERVE EVIDENCE MAY PROVIDE THE OTHER SIDE WITH ENOUGH AMMUNITION TO KEEP ITS LIABILITY OR PUNITIVE DAMAGES CLAIM “ALIVE.” In an increasing number of cases, where there arguably are few or no facts to support liability, plaintiffs have been able to overcome this by pointing to alleged spoliation of evidence that has allegedly prejudiced them. As a sanction for the spoliation of evidence, the court will allow an otherwise legally or factually deficient case to proceed and may even instruct the jury that it may, or must, infer that the missing evidence is harmful to the defense. Consider a recent premises liability case in Pennsylvania where the court denied the defendant store’s motion for dismissal based on spoliation, despite the fact that the store’s video surveillance was not in a location to capture the fall. The plaintiff fell in a store on a large puddle of water. This was not in dispute. What was in dispute was how the water ended up on the floor and how long it was there. In other words, did the store have notice of this allegedly dangerous condition? After the fall, the plaintiff’s attorney asked the store to retain and save all surveillance video from the date of the fall. For some unknown reason, the video was not preserved. After discovery in the case, the store moved for dismissal of the plaintiff’s claims, with one of the bases being that the plaintiff failed to produce any evidence to show the store had notice of the puddle. In denying the store’s motion, the court decided it did not even have to consider whether the store had notice because it had spoliated evidence, and as a sanction, the court would sanction the store with a permissive adverse inference, i.e., that the jury may find that the store’s failure to preserve the video means it must have been harmful to the defense. The court did not explain what relevant evidence the video could have revealed, but instead focused on the fact that the plaintiff requested that the video be preserved, but the store failed to do this. The court inferred bad faith from this. The fact that arguably non-relevant store surveillance video was requested, and not preserved, got the plaintiff past the dismissal stage so that she was permitted to proceed to trial. Without this purported spoliation, the store likely would have prevailed. This is an example of alleged spoliation creating liability where it likely otherwise would not exist.

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Claimants and plaintiffs’ attorneys not only are using spoliation to create liability, where there otherwise may be none, but to support punitive damages claims, i.e., that the defendant’s conduct was reckless or outrageous so that it should be punished. For instance, in another recent case, the court found that the defendant transportation logistics company had intentionally failed to preserve metadata from its system used to provide routes to drivers for independent motor carriers. One of the drivers arguably exceeded the applicable hours of service permitted by the Federal Motor Carrier Safety Regulations, and while doing so, hit a van, killing and injuring several of its occupants. The issue arose of whether someone had changed the electronic data on the routing system to show that the driver was within the hours of service. The plaintiff argued that it possibly could have determined the identity of this person from metadata on the computer system being utilized by the logistics company. It was unclear whether the data that was not preserved would have shown this. More importantly, the type of metadata at issue was not routinely backed up on the system, and it was not specifically requested to be preserved by any party. Regardless, the plaintiff argued that the lawsuit was foreseeable to the logistics company, so it was entitled to an adverse inference. The court agreed, and in doing so, found that the company intentionally or grossly negligently failed to preserve the data. Once the court’s finding of intentional conduct was made, the plaintiff used this to support a punitive damages claim against the logistics company.

• Educate your employees on your company’s retention policy so that there is no question what should be done if they are presented with a claim or notice of an accident.

WHAT CAN YOUR BUSINESS DO TO AVOID SPOLIATION? You may not be able to prevent all claims of spoliation. However, there are steps you can take to lessen the chance, and success, of such claims: • Your company should have a retention policy, including a policy or procedure, to ensure the preservation of data and other evidence when there is a possible claim.

John Pion is a founding shareholder of Pion, Nerone, Girman, Winslow & Smith, P.C. in Pittsburgh, Pennsylvania. He focuses on transportation defense and is the past chairman of the American College of Transportation Attorneys and a former chairman of the USLAW Transportation Group. John can be reached at jpion@pionlaw.com.

• Examine your company’s retention policy, if you have one, to determine if it needs to be updated and is reasonable. Where your company is located, where you do business, or other laws or regulations, may impact what should be preserved and for how long. • Make sure to follow your company’s retention policy. If you want to deviate from it for some reason, seek counsel on whether this may be harmful.

• If there is an accident or a claim, determine as soon as possible what type of evidence may be relevant and which a party may seek. Time is of the essence. When in doubt, seek legal counsel to assist with this. • Do not assume that persons in possession of possible evidence employed by your company, or within your company, know to preserve evidence, or are doing so. When there is a possible claim, double check to make sure possible evidence is preserved. • If you receive a preservation letter, consult with your legal department, or counsel, as soon as possible to determine what is demanded, what is reasonable to preserve, and how you should respond to the preservation request. • Re-evaluate your company’s retention policy on a regular basis to ensure that it is still reasonable. Obviously, you cannot always predict how an opposing party may attempt to use the Spoliation Doctrine against you or your business. But being aware of its existence, and considering it when there are any claims, is a first step to ensuring it is not used to create liability or a punitive damages claim against you, where one otherwise does not exist.

Stephanie Hersperger is a shareholder of Pion, Nerone, Girman, Winslow & Smith, P.C., who practices out of its Harrisburg, Pennsylvania, office. She has a diverse litigation practice but focuses on writing on complex legal issues and appeals. Stephanie can be reached at shersperger@ pionlaw.com.


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Attorney-Client Privilege and Communications With Third Parties Tom Cronmiller, Sanjeev Devabhakthuni, and Matthew Paris

With the proliferation of electronic communication, it is all the more critical to understand the parameters of preserving attorney-client privilege and communications prepared in anticipation of litigation, particularly for larger companies with many employees and outside contractors. In general, attorney-client privilege protects communications: (1) between a client and their attorney; (2) that are intended to be, and in

fact were, kept confidential; and (3) for the purpose of obtaining or providing legal advice. Attorney-client privilege usually extends to an attorney’s communications with company employees as long as the communication is made for the purpose of securing legal advice concerning a subject within the scope of employment. Court decisions have varied, however, as to the scope of this privilege as to communications with other third parties,

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such as consultants or former employees. A few recent decisions are worth consideration. In Walsh v. CSG Partners, LLC, decided on June 16, 2021, a federal court in New York State addressed whether attorney-client privilege applied to documents withheld by an investment bank in response to investigative document requests by the U.S. Department of Labor. The bank withheld numerous documents, including communi-


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cations between the bank’s clients and those clients’ legal counsel. The bank asserted the privilege based in part on the fact that it had worked closely with each company’s business personnel and legal team and contributed expertise and knowledge that the companies and their counsel did not have. The court rejected the bank’s arguments and held that no attorney-client privilege applied to the communications between the bank’s clients and its legal counsel because the bank was a third party. Although, attorney-client privilege can apply to communications involving a third party if the purpose is to improve the comprehension of the communications between the attorney and client. However, the court held that this narrow exception did not apply because the investment bank simply provided information and financial advice and did not provide any assistance as to comprehending legal issues as an expert might. Thus, the privilege did not apply. In addition, the court held that the “functional equivalent doctrine,” which has been adopted by several courts, also did not apply. The functional equivalent doctrine protects communications between a company’s lawyer and a third-party consultant who serves as a de facto high-ranking employee of the company. To determine if a consultant is the functional equivalent of an employee, courts look to a number of factors, including, among others, whether the consultant had a continuous and close working relationship with the company’s principals on matters critical to the company’s position in litigation, whether the consultant exercised decision-making authority on the company’s behalf, and whether the consultant sought legal advice from corporate counsel to guide their work for the company. In the Walsh case, the court rejected the bank’s contention that the withheld communications were protected by virtue of the bank being a de facto employee of its clients. While the bank had a close working relationship with each company’s leadership, the relationship was limited to business dealings and, critically, the relationship did not extend to each of the company’s positions in litigation. Furthermore, the bank did not possess decision-making authority for its clients; rather, the bank’s role was limited to providing them with information necessary to negotiate the terms of transactions, soliciting bank financing, and preparing financial models. The court also found it significant that the bank did not solicit advice from its clients’ legal counsel in order to guide its work for its clients. Instead, the flow of information went only from the bank to its clients and their attorneys. As such, the court held, the bank could not withhold the communi-

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cations under attorney-client privilege. In contrast, in Spectrum Dynamics Med. Ltd. v. GE, decided on September 9, 2021, a different judge from the same court in New York State held that certain documents undisputedly disclosed to a third party nevertheless were protected by attorney-client privilege. The communications in Spectrum were email communications related to a corporate name change and restructuring transaction. The plaintiff (the disclosing party) asserted that the third-party consultant at issue employed two individuals acting as de facto employees or agents for the plaintiff in the role of financial managers in connection with the restructuring transaction. Thus, the plaintiff argued, the individuals understood and respected the confidential and privileged nature of the email communications with counsel and were essential to the plaintiff’s ability to complete the restructuring transaction. The defendant argued that the privilege was waived because the plaintiff disclosed the communications to a third party (i.e., the consultant and its two employees). The court held in favor of the plaintiff and concluded that the communications were protected by attorney-client privilege. More specifically, the plaintiff demonstrated that the two third-party employees were essential consultants to the plaintiff’s predecessor in connection with the corporate restructuring transaction and served in an in-house role insofar as they were treated as employees, required to maintain confidentiality, and provided essential advice to attorneys working on the restructuring transaction and name change. Accordingly, the court held that the individuals’ involvement improved the comprehension of the communications between attorney and client, and the privilege was not waived under these circumstances. Finally, FaZe Clan, Inc. v. Tenney, decided in March 2020 by yet another judge from the same court, contains a useful discussion of whether an attorney’s communications with a third party are protected as attorney work product. The work product doctrine provides that a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative. At issue in FaZe Clan were emails exchanged between a party’s attorney and a nonparty consultant. The court held that, although emails to a third party can qualify as work product under some circumstances, the emails at issue were not protected because they pertained to the third-party agency’s business strategy and not to strategy concerning litigation. Thus, the communications were discoverable in the lawsuit. The decisions in this article serve as

a reminder that attorneys and companies should be mindful of, and have policies in place regarding, communications with attorneys and outside parties to ensure the protection of confidential information. Although the applicability of attorney-client privilege is very fact dependent, as shown by the decisions in this article, parties should be able to draw a line between privileged and discoverable communications with proper procedures in place. Although not foolproof, it is good practice for an attorney communicating with a client to label all privileged communications prominently as “Confidential” and “Attorney-Client Privileged” or “Attorney Work Product,” as applicable. For emails, this designation can be included in the subject line. In addition, attorneys and their clients should avoid lengthy email chains, and privileged communications with clients should be addressed to one client representative (e.g., in-house counsel) and not to numerous recipients whenever possible. Finally, it is critical that the communications pertain solely to legal advice and not business strategy; otherwise, these communications will likely not be protected from disclosure. Tom Cronmiller is a partner at Barclay Damon LLP. He focuses his practice on products liability, complex personal injury, commercial litigation, intellectual property litigation, and professional liability litigation matters. Tom’s clients include multinational, publicly traded manufacturing companies, large underwriters of commercial and specialty lines of insurance, and privately held and public companies. Sanjeev Devabhakthuni is counsel at Barclay Damon LLP. He primarily concentrates his practice on appellate advocacy, litigated tort defense, and insurance-coverage disputes. He represents individuals and businesses in defense matters ranging from simple accidents to complex exposure-related cases. Sanjeev’s clients include insurance company supervisors and managers and business owners. Matthew Paris is an associate at Barclay Damon LLP. He focuses his practice on insurance coverage disputes. He has experience with cases throughout the litigation process, from the motion to dismiss stage through summary judgment.


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Vaccines, Variants and Violence in the Workplace Melisa C. Zwilling and Brett Adair

We live in a time when heated disagreements and frequent violence are becoming an increasingly significant problem in society and, not surprisingly, for employers. Every year, nearly two million workers face violence at work, and that number is on the rise. Workplace violence may consist of an act or threat of physical violence, harassment, bullying, intimidation or other disruptive behavior. It ranges from threats and verbal abuse to physical assaults and, in the most extreme cases, homicide. In fact, workplace violence is the third leading cause of fatal occupational injuries in the United States. Preventing violence in the workplace should be a priority for employers, yet fewer than 55 percent of human resource professionals are even aware of their company’s policies on the subject. While there are no federal standards governing workplace violence, the Occupational Safety and Health Administration (“OSHA”) requires that employers provide a workplace that is free from recognized hazards that are either causing, or are likely to cause, death or serious physical harm to employees. Some states also have OSHA-approved plans that require employers to have workplace violence prevention policies in place. In addition to state or federal OSHA penalties, employers may

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also be held liable in court for workplace violence under various theories of liability, including premises liability, respondeat superior, negligent hiring and retention, and discrimination and harassment. When it comes to COVID-19, unfortunately, tensions are likely to continue to increase. On September 9, 2021, in response to the surge in cases due to the Delta variant, President Biden issued two Executive Orders mandating that federal employees and contractors become vaccinated against COVID-19. He further directed OSHA to develop an Emergency Temporary Standard (“ETS”) requiring that private employers with 100 or more employees mandate COVID-19 vaccinations or weekly testing. That ETS, which was issued on November 4, 2021, was met with strong criticism and contrasting voracious support. A mass of litigation immediately ensued across the country. Ultimately, the legality of the mandate will be decided by the United States Supreme Court, who gave President Biden until December 28, 2021, to respond to several pending appeals. Employers should be aware of employee conflicts that will continue to be an issue and ensure that adequate attention and efforts are focused on protecting employees. Below are some suggestions to help in this regard.

HAVE A WORKPLACE VIOLENCE PREVENTION PLAN A good plan to deter violence in the workplace should clearly identify to whom verbal threats or intimidation and physical aggression should be reported. The individuals responsible for implementing and enforcing the plan should be aware of the steps that should be followed in response to complaints. Employees should be trained and encouraged to report all incidents of workplace violence, and assurances should be given that no retaliation will occur in response to reports. Additionally, to the greatest extent possible, confidentiality must be maintained whenever reports are made. IMPLEMENT A ZERO-TOLERANCE POLICY TOWARDS WORKPLACE VIOLENCE Absolutely no amount of workplace verbal or physical harassment or aggression should be tolerated. Regardless of who the offending employee is or at what level he or she works, swift and effective action should be taken in response to reports of workplace threats or violence. Employers must ensure that all employees, including those in management positions, are aware of the zero-tolerance policy and the consequences for failure to comply.


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KNOW THE WARNING SIGNS Tragically, after many violent workplace incidents have occurred, co-workers only then speak up to note that they felt something was “off,” or wrong, with the aggressor employee. Not only should employees be encouraged to pay attention to the warning signs, but they should also be directed to report the same to management. If a co-worker’s words or actions cause someone else discomfort or fear, an investigation should be conducted and appropriate action taken. Some of the most common troubling behavior includes an employee being openly aggressive, hostile or disruptive to the work environment, displaying hypersensitivity to even slight criticism, blaming others for mistakes, or being preoccupied with violence. Also, sharp changes in personality should be monitored, such as usually friendly individuals who begin acting quiet and withdrawn. Increased reliance on alcohol, significantly increased absenteeism, a decline in attention to hygiene or physical appearance, emotional outbursts and an inability to focus on job tasks are also warning signs indicating that an employee may have an increased risk of aggressive behavior at work. In addition to behavioral changes, challenging life situations for employees should be observed as well, particularly those related to COVID-19. If an employee’s family member becomes seriously ill or dies from COVID19, that employee may exhibit a great deal of anger and blame towards co-workers who refuse to become vaccinated. In addition, an employee who is experiencing financial hardship because of a reduction in hours or loss of a family member’s job related to COVID-19, may be intolerant of co-workers who decline the vaccine. Similarly, an employee whose employment is terminated for refusing to become vaccinated may become angry and act out towards co-workers or managers. All of these situations should be carefully monitored. CONDUCT PERIODIC EMPLOYEE AND MANAGEMENT TRAINING Training should be conducted for all new hires and periodic refresher courses should be given for the entire workforce. All levels of management should be included in the training. The employer’s workplace violence prevention plan should be reviewed and any hazards particular to the workforce should be noted. Tips for helping diffuse volatile situations should also be given so employees and management can take steps to de-escalate an encounter before it gets out of hand.

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ENCOURAGE EMPLOYEE REPORTING OF SUSPICIOUS OR THREATENING BEHAVIOR The most effective method of preventing a violent workplace incident is employee reporting of concerning conduct followed by management intervention. Employers should maintain an open-door policy and encourage employees to express any and all concerns. Reports should be investigated quickly and completely, while maintaining the highest level of confidentiality possible. If inappropriate behavior is confirmed, swift action should be taken by management. Employees who report being subject to violent or potentially violent behavior should never be subject to punitive action or retaliation. In addition to encouraging open reporting, employers should consider implementing a method whereby employees can report potentially harassing or violent situations anonymously. This will help ensure that employers are able to address concerns and situations that a worker may fear reporting in person. This is particularly important when an employee is subordinate to the aggressor. PROMPTLY CONDUCT THOROUGH INVESTIGATIONS AND TAKE APPROPRIATE ACTION Specific individuals, preferably in human resources or management, should be tasked with investigating reports of workplace violence. Questions should be asked of the reporting individual to determine the details and extent of the alleged incident. Exactly what was said or done? Why did the reporter feel the behavior was threatening? Did the offending behavior occur on more than one occasion? Were there witnesses to the incident that caused concern? Is the alleged offender in a position of authority over the reporter? These and other questions should be asked to get as much detail as possible so the employer will be better able to understand and address potentially violent situations. Likewise, the alleged offender should be questioned. Why did the employee act in the way she did? Does the employee accept responsibility for her words or actions? Does the employee understand that certain behavior is not acceptable in the workplace? Does she understand the consequences of failing to comply with work policies against violence? In certain situations, outside assistance, such as law enforcement, should be called in to help. This is particularly important in the event that active threats of violence are made or physical altercations have occurred. Employers may also consider calling

in mental health professionals to provide assistance to employees in certain high-stress work environments or if several employees have exhibited inappropriate behavior towards co-workers or management. CONSIDER WHETHER ADDITIONAL INSURANCE IS NEEDED General liability and workers’ compensation policies should be reviewed to determine whether additional, specific workplace violence coverage is needed. For employers in higher-risk industries, such as restaurant and hospitality, delivery services, drivers for hire, healthcare and customer service, additional coverage should be carefully considered. The more severe the act of workplace violence, the more important having adequate insurance becomes. BE PROACTIVE In a time marked by frequent strong disagreements and heated debates, it seems that people are finding it more difficult to get along. Tensions about many issues are soaring. Patience is waning, intolerance is increasing and frustrations run very deep. The divide across the country concerning COVID-19 vaccine mandates is very likely to grow in the coming months. Despite best efforts, personal feelings and life situations inevitably spill over into the workplace. Employers should be prepared by developing and implementing an effective plan to deal with violence that, unfortunately, may be on the rise as we move forward.

Melisa C. Zwilling is a shareholder with Carr Allison in Birmingham, Alabama. A national authority on Medicare Secondary Payer compliance, Melisa has refocused her passion for the law on the myriad issues clients are facing related to COVID-19. Her ability to understand and clearly communicate complex laws has proven invaluable. She can be reached at mzwilling@carrallison.com. Brett Adair is a shareholder in Carr Allison’s Birmingham, Alabama office and serves as chair of the firm’s employment litigation practice group. He represents employers throughout the United States in all types of state and federal employment-related matters. For his outstanding legal work, Brett has been selected for inclusion in The Best Lawyers in America© for several years. He can be reached at badair@carrallison.com.


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The Historic

Cannabis Administration andOpportunityAct Could Finally End Federal Cannabis Prohibition Darren P. Grady

SmithAmundsen

Cannabis, or “marihuana” as it is referred to in the Controlled Substances Act (CSA), has been federally illegal in the United States since 1937. In July 2021, Senate Majority Leader Chuck Schumer (DNY) announced that he will make legislation ending the federal prohibition of cannabis a top priority. In the recent press conference, Senator Schumer introduced a draft of the Cannabis Administration and Opportunity

Act (the “CAOA”), which would lift the federal prohibition on cannabis and, critically, allow state-compliant cannabis businesses to have access to financial services such as bank accounts and loans. This would be a boon for the cannabis industry, which has largely been prevented from banking any cannabis-derived funds at all. The act is widely regarded as the most comprehensive bill introduced to end federal prohibition of can-

nabis, building on the excellent work done by legislators on the Marijuana Opportunity, Reinvestment, and Expungement Act. Pursuant to the CAOA, which is also sponsored by Senate Finance Committee Chairman Ron Wyden (D-OR) and Sen. Cory Booker (D-NJ), cannabis would, of course, no longer be a controlled substance. The Attorney General would be required to remove cannabis from the CSA (where it is


USLAW

still a schedule I drug - purportedly having no medical value and a high potential for abuse) no more than sixty days after the enactment of the law. Individual states will retain control of cannabis policy within their borders. Though the act would strike cannabis from the CSA, it would not technically “legalize” cannabis. The CAOA would simply end federal prohibition on cannabis. The federal prohibition of cannabis, and the growing number of states that have legalized cannabis, has created a very complex set of issues for commercial transportation companies. After all, transporting cannabis is particularly risky because transporting cannabis over state lines is still considered federal drug trafficking, while the loads are both high value and potentially high risk. Additionally, while a federal government enforcement action against a state-licensed cannabis company is generally considered highly unlikely, there are certain acts that the Department of Justice has commented will greatly increase that likelihood, one of which is transporting cannabis over state lines. Currently, transporting cannabis across a state border (even between two states where cannabis is legal, and even unknowingly) may result in extremely harsh penalties, which could include large fines, federal seizure of assets, criminal prosecution, and loss of federal operating authority and licensures. Passage of the CAOA, or any other version of the act that ends federal prohibition of cannabis, would likely help resolve many of these issues and ease the concerns of more traditional motor carriers who are currently hesitant to transport cannabis. Many states already have licenses or some form of regulation for intrastate transport of cannabis only. Under the CAOA, all states would have to allow for transportation of cannabis and cannabis-related products through their state (similar to the current regulations for interstate transportation for industrial hemp) even if they choose not to allow for the sale and possession of legal cannabis within their borders. Further, the CAOA would create grant programs to assist those impacted by the so-called “war on drugs,” provide funding for business loans and provide funding for cannabis licensing programs to assist those disproportionately affected by draconian cannabis laws and resulting penalties. Further, those in receipt of or seeking federal benefits cannot be denied those benefits due to past use or possession of cannabis (or a past conviction for a cannabis crime). The act also sets forth federal tax provisions on the plant and a codification of the regulation entities. The FDA would be the primary federal regulatory agency (a shift away from the DEA). The FDA would

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handle regulation of the manufacture and marketing of cannabis, including product standards, registration, listing, and labeling information related to ingredients in cannabis products and directions for use of the multitude of cannabis products. The Alcohol and Tobacco Tax and Trade Bureau and the Bureau of Alcohol, Tobacco, Firearms and Explosives would also have some regulatory oversight pursuant to the Act. In commenting on the social justice aspects of the CAOA, Senator Schumer stated that “[a]t long last [the CAOA] would take steps to right the wrongs of the failed war on drugs,” as the act would also call for the expungement of arrests and convictions for non-violent cannabis offenses. The act would also allow people currently serving, or subject to, a cannabis sentence to obtain sentencing review. A period of public comment following the introduction of the CAOA expired on September 1, 2021, and there was a robust response from many commenters, including prominent cannabis advocacy groups such as the U.S. Cannabis Council (USCC) and the Marijuana Policy Project (MPP). The USCC has generally praised the comprehensive cannabis reform bill. The MPP, which advocates for the end of federal prohibition as soon as possible, lauded certain aspects of the bill, including re-sentencing and expungement for certain cannabis-related crimes, but also commented that there are elements of the bill they would like to see changed before any enactment effort. The concerns included aspects of the federal tax structure (too much federal tax on top of state taxes already in place), potential negative effects on state-legal cannabis programs (opening of interstate commerce and infusion of national competition hurting small local businesses), and the shift to the FDA as the new regulatory agency over the cannabis industry (they prefer Tax and Trade Bureau at the Treasury Department as a more appropriate agency). The public comment period also drew a response from the hemp industry. The U.S. Hemp Roundtable, a hemp industry trade association, urged the CAOA’s sponsors to include regulations for cannabidiol (CBD) to be legally marketed and sold in food and beverages. This is currently not allowed by the FDA, even though many businesses are actively selling CBD-infused consumables. The hemp industry is concerned with the CAOA’s lack of protection for hemp-derived CBD. The comment also asked for the bill to include clarification on the legal definition of cannabis vs. hemp and amend the statutory definition of hemp. The 2018 Farm Bill codified the definition of hemp. Currently, hemp contains no more than 0.3% Delta-9 THC by dry weight. In their comment, the

U.S. Hemp Roundtable proposed that the limit on finished, end-user consumable products be capped at 0.3% total THC, including Delta-8 THC, but that the legal limit on the crop stages of the products be raised to 1.0% by dry weight. Delta-8-THC is a mildly euphoric isomer of delta-9-THC (the well-known psychoactive compound in federally illegal cannabis). Delta-8-THC is typically synthesized from CBD extracted from hemp, and many CBD shops are actively selling Delta 8-THC products. So, what is next? The bill’s authors may or may not revise the draft based on the feedback received during the public comment period. Then, the actual bill will have to be filed and sent to committee. This is a requirement before a full vote in Congress. As expected, the CAOA will face legitimate passage issues in the Senate (assuming it passes in the House, which it likely will in some form). The act will need sixty votes in the Senate for ultimate passage before making it to President Biden. There are fifty Democrats in the Senate, and it is not readily apparent if all of them support the act or would support some revised form of the act. Even with 100% support from the Democrats, the CAOA would still need ten Republican Senators to vote to pass the act. Despite these challenges, the introduction of this draft landmark legislation is yet another step in the right direction of much needed and long overdue cannabis reform. Those individuals and businesses already in the legal cannabis industry, or businesses waiting for the federal status of cannabis to change before entering the market, should monitor the progress of the CAOA and Senator Schumer’s efforts very closely. Those businesses should continue to make themselves heard by speaking with industry insiders, lobbyists, and politicians. They should also speak with trusted counsel about how this groundbreaking piece of legislation and the end of federal prohibition of cannabis could significantly change the landscape of the industry in the United States.

Darren Grady is a partner in SmithAmundsen’s Chicago office. He serves as co-chair of the firm’s cannabis practice. He works with dispensaries, infusers, cultivators, manufacturers, distributors, and entities with connections and business relationships in this emerging industry with a specialty in CBD. He provides counsel on litigation, corporate, regulatory and employment issues. Contact: dgrady@salawus.com


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WINTER 2021/2022 USLAW MAGAZINE U S L A W

A Product Recall Case Study

A Manufacturer’s Frozen Food Recall Has a Potentially Chilling Effect on Sales By Maria Geyer, CPA

As forensic accountants, clients frequently ask MDD to quantify losses stemming from a variety of product recall matters. To date, we have worked in sectors as varied as farming, power generation, construction, transportation, cosmetics, food and beverage and others. MDD assisted in one such matter when we were retained to review and quantify costs for a frozen foods manufacturer that had to recall a critical raw ingredient. The $2.5 million insurance claim included the cost of the lost ingredient, lost sales value of finished goods inventory, sales losses due to the inability to fill orders, and customer chargebacks. As part of the review, MDD examined the following issues: •

Was the claim for the loss of raw ingredients a duplication with other areas of the claim?

Were the claimed lost finished goods quantities reasonable?

Did the manufacturer have a basis for claiming lost finished goods at sales value and sales losses from not being able to fill orders?

Were the customer chargebacks adequately supported?

HOW WE HELPED Even though the manufacturer claimed a significant loss from its raw ingredient purchases, MDD confirmed the specific recalled batches and determined that only a portion of these ingredients were

MDD Forensic Accountants

involved in the recall. We also concluded that the ingredients had been consumed as part of the manufacturing process and then converted to finished goods. As such, the manufacturer had no basis for this aspect of the claim because it would have been a duplication with the claimed finished goods and customer chargebacks. MDD used various production and shipment documentation to analyze and confirm the finished goods cases produced, including those cases that were either shipped to external warehouses/customers or still in stock at the plant. After finishing our analysis, we determined that the claimed on-hand quantities were reasonable, both at the plant and at the external warehouses. The manufacturer claimed the warehouse inventory quantities at sales value. We also analyzed purchase orders and sales invoices supporting cut orders (reduction in quantities ordered due to occurrence). While the cut orders were reasonably supported, we determined that they posed a potential duplication issue with the claim of the finished goods since the manufacturer would have filled the cut orders with the same finished goods being claimed elsewhere. Although the manufacturer presented the claim for lost inventory and cut orders at sales value, the combined sales loss could not exceed the total sales value lost for the same products. This meant that MDD needed to perform an analysis to verify the total sales loss sustained from the affected products.

Our review confirmed lost sales in the month after the recall and a sales makeup over the subsequent two months. In other words, the sales records supported that although there was an impact on sales immediately following the recall, the company recovered some of the sales loss by increasing shipments over the next two months. We concluded there was an overall net sales loss for the affected products over these three months. MDD then limited the claimed loss of finished goods and orders so they would not exceed the overall net sales value lost according to the sales records. Finally, the manufacturer claimed losses due to their customers charging them for the products they had to dispose of because of the recall. MDD analyzed supporting documentation and held back charges with no invoice or insufficient detail/backup, duplications, and amounts for the non-recalled product. These costs also included recall and administrative fees, and we segregated those fees not supported by supplier agreement and vendor recall policies. Maria Geyer is a CPA and partner in the New York office of MDD Forensic Accountants. She has been retained as an expert witness in accounting and damage valuation, including admission as an expert witness in State court. To contact Maria, please email her at mgeyer@mdd.com.


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Transforming Claims Collaboration Information Sharing for Structured Settlements

By Brad Cantwell

DIGITAL TRANSFORMATION IS A BUZZWORD WE HEAR A LOT NOW. BUT IT’S NO FAD. Today, 80 percent of organizations are implementing a digital transformation strategy in one form or another1. And one thing they all have in common? It means something different to each one of them. But in general, it’s about incorporating digital technology into all aspects of a business, fundamentally changing how it operates and delivers value2. Some examples: An online retailer may digitally transform and adapt predictive analytics to recommend related products as the next-best purchase for shoppers. Or they may use analytics to direct a customer service call to the best operator for that topic.

A global consulting firm may embrace cloud computing to link worldwide offices and databases more efficiently. And incorporate cloud security to protect that network, in turn.

In the structured settlement arena, a leading transformation focus is on digital collaboration. Why collaboration? In any legal mat-

Arcadia Settlements Group

ter there is usually substantial information sharing and negotiations, with documents that need to be reviewed and approved by multiple parties. If one were to choose a process to be made more efficient through digital transformation, collaboration would be a good candidate. When a legal claim has been made, there is an initial case analysis, then settlement negotiations and ultimately, settlement documents to be created, edited and executed. All of this involves multiple parties, including attorneys, claims professionals, case managers, consultants and others. The more that collaboration can be streamlined and organized – beyond an inbox of disparate emails over here and a storehouse of data over there – the more efficient it becomes. WHERE WE ARE Attorneys and claims professionals have their own versions of case management software. And many of us use a cloud server, teamwork application or shared database within our organizations. That’s a start. But collectively it represents a lot of silos of information. Some of them are proprietary, limiting access to external parties due to confidentiality or compliance considerations.

A.D. Rayome, “90% of companies undergoing digital transformation facing ‘significant obstacles’,” TechRepublic, https://www.techrepublic.com/article/90-of-companies-undergoing-digital-transformation-facing-significant-obstacles/, Jan 14, 2019. 2 ”What is digital transformation?,” The Enterprisers Project, https://enterprisersproject.com/what-is-digital-transformation, data pulled Jun 23, 2021. 1

WHERE WE’RE GOING The legal and insurance industries are committed to moving beyond traditional limitations by adopting case collaboration software that provides a more connected, shareable experience that is also security compliant. These types of web-based applications have already made an impact, facilitating data sharing and settlement proposal collaboration while applying advanced data security and privacy safeguards. In a centralized collaboration space, a single point of reference enables shared views of case data, simplifying the process of exchanging updates. Digital transformation is an ongoing process, and each organization has its own roadmap. When it comes to improving collaboration, the right software can help us navigate more effectively and efficiently, handling data more securely and producing better outcomes.

Brad Cantwell is the CEO of Arcadia Settlements Group. As a settlement consultant, he assisted in the settlement of more than 2,500 cases across North America. He focuses primarily on supporting the settlements industry with technology and financial product innovation, education and strategic organizational improvements. Arcadia Settlements Group is USLAW’s exclusive structured settlement corporate partner.


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Modern Application of California’s Privette Doctrine Following New California Supreme Court Cases Joshua W. Praw

INTRODUCTION On August 19, 2021, and September 9, 2021, the California Supreme Court published two new decisions further limiting exceptions to the Privette Doctrine, which set forth hirer liability for injuries to independent contractors or its workers. This article will outline California’s Privette Doctrine, the exceptions to it, and the impact of these two new decisions, particularly from the perspective of a landowner-hirer. DEFINING CALIFORNIA’S PRIVETTE DOCTRINE In California, an injured worker’s ex clusive remedy is through the State’s worker’s compensation scheme. Absent specific circumstances, which are not the focus of this article, the worker may not sue their employer in civil court for their personal injuries. However, can the injured worker sue the landowner-hirer? This is a frequent issue

Murchison & Cumming LLP

in construction and the California Supreme Court established the Privette Doctrine to govern this situation.1 Following Privette, a hiring landowner is generally not liable for injuries sustained by a “contract worker” (referring to an independent contractor personally, the independent contractor’s employees, the independent contractor’s subcontractors personally, the subcontractors’ employees, and so forth) working on their property. The principle established by the California Supreme Court is the strong presumption of delegation rooted in the rationale that landowners usually have no right to control an independent contractor’s work, contractors consider the cost of safety precautions and insurance in their contract, contractors can obtain worker’s compensation to cover injuries, and contractors are hired for their expertise, which the landowner typically lacks.2 The Privette Doctrine also furthers

the strong public policy of fairness in that it is ordinarily unfair to let a contract worker recover from the hirer for the contractor’s negligence. EXCEPTIONS TO THE PRIVETTE DOCTRINE: EXPOSING THE LANDOWNER TO LIABILITY In the years following the Privette hold ing, California courts carved out exceptions to the rule: the Hooker and Kinsman exceptions. In Hooker, if the hirer retained control over any part of the contract worker’s work and negligently exercised that control in a manner that contributed to the injury, the landowner may be liable.3 In Kinsman, a landowner may be liable if the landowner knew, or should have known, of a concealed hazard on the property that the contractor did not know of and could not have reasonably discovered, and that landowner failed to warn the contractor of the hazard, then that


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landowner may be liable.4 These new California Supreme Court holdings further limit the Kinsman and Hooker exceptions. KNOWN HAZARDS GENERALLY DO NOT EXPOSE THE LANDOWNER TO LIABILITY In the first case, published on August 19, 2021, Gonzalez v. Mathis, the California Supreme Court was asked to determine if a landowner may be liable for injuries from a known hazard on the premises that neither the contractor nor its workers could have avoided through the adoption of reasonable safety precautions. This is in contrast to the issue of unknown hazards handled in the Kinsman holding. In Gonzalez, the injured worker was a skylight washer and had been to the landowners home many times to wash the skylight. He had previously put the landowner on notice of a dangerous condition on the roof, but it had not been repaired prior to the incident. The worker was injured by the dangerous condition when he fell off the roof. The California Supreme Court held that “a landowner presumptively delegates to an independent contractor all responsibility for safety, including the responsibility to ensure the work can be performed safely despite a known hazard on the worksite. For this reason, a landowner will generally owe no duty to an independent contractor or its workers to remedy or adopt other measures to protect them against known hazards on the premises.”5 In reaching this conclusion, the Court emphasized the issue of delegation as the key principle underlying the Privette Doctrine because the hirer presumptively delegates to the contract worker the authority to determine the manner in which the work is to be performed, the contractor also assumes the responsibility to ensure that the worksite is safe, and the work is performed safely. The principle of delegation is so strong under the Privette Doctrine that this “no duty” rule even applies where the contractor is unable to minimize or avoid the danger through the adoption of reasonable safety precautions.6 Even though the focus of Gonzalez is to

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Privette v. Sup. Ct. (1993) 5 Cal.4th 689. Id. at 693-700. Hooker v. Dept. of Trans. (2002) 27 Cal.4th 198. Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659. Gonzalez v. Mathis (2021) 12 Cal.5th 29, 57. Id. at 41. Id. at 50. Sandoval v. Qualcomm Inc. (2021) 12 Cal.5th 256, 274-276. Id. at 276-277. Id. at 282.

contrast unknown hazards in Kinsman from known hazards in Gonzalez, some analysis of the Hooker exception is necessary too. For an injured worker to prevail under Hooker, that worker must establish that the hirer retained control over the work and negligently exercised that control in a manner that contributed to the injury. As decided in Hooker, merely allowing a dangerous condition to exist is not enough to overcome the strong presumption of delegation. Put another way, passively permitting an unsafe condition to occur does not constitute affirmative contribution. This is because a landowner will normally be less likely than a general contractor to have knowledge regarding the “methods used and requirements of the work being performed” by an independent contractor and is, therefore, less likely to understand whether and what safety precautions are available to protect the contractor’s workers from known hazards on the premises.7 FURTHER ELABORATION OF HOOKER’S CONCEPTS: RETAINED CONTROL, ACTUAL EXERCISE & AFFIRMATIVE CONTRIBUTION In the second case, published on September 9, 2021, Sandoval v. Qualcomm Inc., the California Supreme Court elaborated on the retained control exception established in Hooker. The facts of Sandoval are technical and complex and are not the focus of this article but involve the power down process of an electrical plant. Qualcomm planned to upgrade certain machinery and a preliminary step was to determine the amperage capacity of the existing equipment. To do this, Qualcomm hired an electrical engineering firm, that in turn hired an electrical repair specialist firm, to perform the amperage capacity test. Qualcomm oversaw and performed the power down process, but intentionally did not power down all terminals since the contract workers were only to work on the one “dead” terminal. After the power down and after Qualcomm relinquished control of the work site to the contracted workers, the electrical engineer opened one of the live terminals to take a picture and

that open and live terminal electrocuted one of the contracted workers. The issue in Sandoval was whether Qualcomm retained sufficient control over the work when it performed the power down process such that it was liable for the worker’s injuries. The California Supreme Court held no. The Court reiterated Hooker’s three key concepts: retained control, actual exercise and affirmative contribution. All three elements must be present. A hirer “retains control” where it retains a sufficient degree of authority over the manner of performance of the work entrusted to the contract worker. In Sandoval, the issue was not whether Qualcomm retained control over the power down process, and therefore safety conditions, but rather whether Qualcomm retained a sufficient degree of control over the manner of performing the contracted work, which the Court held it did not.8 But retained control alone is not enough, a hirer must “actually exercise” that retained control and does so when it exerts some influence over the manner in which the contracted work is performed. Lastly, a hirer “affirmatively contributes” to the injury when the hirer’s exercise of retained control contributed to the injury in a way that is not merely derivative of the contractor’s contribution to the injury.9 The last clarification from the Court in its Sandoval holding, and relevant to landowners, is that the Hooker exception does not require the hirer to be a landowner, whereas the Kinsman exception does.10 CONCLUSION The most important takeaway from the Privette line of cases is the emphasis by the California Supreme Court on the principle of delegation. The Court reiterates in opinion after opinion the strong presumption of delegation when a landowner hires a contractor to perform work on the property. The exceptions to the Privette Doctrine are also construed narrowly in order to promote the public policy that it is ordinarily unfair to let a contract worker recover from the hirer for the contractor’s negligence.

Joshua W. Praw is an attorney in the Los Angeles office of Murchison & Cumming LLP focusing his practice in the area of commercial general liability, products liability, and toxic tort. Joshua is a graduate of University of San Diego School of Law (JD) and University of Wisconsin – Madison (BA).


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FOREIGN CONCEPT

Do Foreign, Non-U.S. Citizen Workers Count as “Employees” When Determining Whether Title VII Applies? Jessica L. Dark

and Jeffrey C. Hendrickson

For most employers, the question of how to count their workers in determining whether the Title VII of the Civil Rights Act applies to their firm is cut-and-dry. The majority either have 15 or more employees (and thus most anti-discrimination laws, like Title VII of the Civil Rights Act, apply), or they have fewer than 15 employees (and laws like Title VII don’t apply). This relatively simple question is made so by the reality that most employers either

Pierce Couch Hendrickson Baysinger & Green, L.L.P.

(1) don’t employ foreign workers outside the United States, or (2) are large enough to clear the 15-employee threshold with domestic1 workers even if they also employ foreign* workers outside of the United States. These employers simply view payroll and determine if each domestic worker listed therein was employed for twenty or more weeks in the preceding calendar year. But for a smaller subset of employers, a critical question persists: what hap-

pens when the application of federal employment law to their company turns on whether a foreign worker, laboring outside the United States, is counted as an employee? Consider a company that employs hundreds of foreign workers in the country of that company’s corporate residence yet employs only ten domestic workers in the United States. Does the existence of those foreign workers require the employer to comply with Title VII, despite the fact the


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employer only employs ten domestic workers in the United States? The answer, it turns out, is muddled at best. Some district courts have said yes, and some no, leaving the question open and court-dependent. It is important for practitioners to be aware of this incongruity. This article focuses primarily on Title VII, as it is the most generally applicable federal employment anti-discrimination law. Briefly, Title VII (42 U.S.C. § 2000e et seq.) bars employers from discriminating against or retaliating against a person who opposes discrimination against employees based on their status as a member of a protected class (race, gender, sexual orientation, religion, etc.). That law, however, only applies to “employers” with 15 or more employees.2 The statute defines “employer” as: “[A] person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person[.]” 42 U.S.C. § 2000e(b) (emphasis added). Title VII also, importantly, protects domestic workers employed in a foreign country. Id. § 2000e(f). So, to define the Title VII framework for this article, the following is generally true: Domestic employers, and foreign employers doing business in the United States, must comply with Title VII if they meet the employee-number requirement. Domestic employees of these companies are generally counted towards the employee-number requirement regardless of whether they work in or out of the United States. Moreover, foreign employees working inside the United States are counted towards the employee-number requirement. The question is: do foreign employees working outside the United States apply to the Title VII’s 15-employee threshold? As it turns out, this is a complicated question, and one will not be surprised to learn that the Supreme Court has never addressed it. Until 1998, the prevailing view

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was that foreign employees working outside the United States could not be counted for purposes of Title VII’s application. That year, however, the Second Circuit decided Morelli v. Cedel.3 In that case, the plaintiff, a domestic employee, worked in New York for a foreign bank. The bank terminated her employment, and she sued it for age discrimination under the Age Discrimination in Employment Act (ADEA). The bank argued it was a foreign employer with fewer than twenty domestic employees,4 making the ADEA inapplicable. The district court agreed with the bank and dismissed the case, reasoning that because the ADEA did not expressly protect foreign employees, those same foreign employees did not count in determining whether the U.S. law applied. Thus, since the bank had fewer than 20 domestic employees, the ADEA did not apply. On appellate review, however, the Second Circuit disagreed, noting that the ADEA expressly “counted” employees for the 20-employee threshold that it did not also protect (those being employees under the age of 40). The court then discussed policy rationales for the employee-number requirement, found that no rationale held firm for excluding foreign employees from the ADEA’s count, concluded the bank’s foreign workers did count towards the law’s employee-threshold, and reversed the district court. Morelli thus became the launching point for the view that employee-number requirements in domestic federal laws can include foreign workers working outside the United States. A few years later, that view was expressly extended to Title VII’s employee-number requirement by the Ninth Circuit in Kang v. U. Lim America, Inc.5 In a 2-1 decision, the Ninth Circuit endorsed counting foreign employees for purposes of Title VII’s application, emboldened by the provision of Title VII that expressly protects domestic workers in foreign countries. The dissenting judge in Kang saw it differently. In his view, Title VII’s express mention that it protected domestic employees overseas (a provision the ADEA did not contain) operated to exclude the protection of employees that Title VII did not mention: foreign employees overseas.

For ease of understanding, the term “domestic” as used in this article means “United States citizen,” and “foreign” means “non-United States citizen.” Title VII is a federal law; many states have their own laws that bar employers with less than 15 employees from the same sort of conduct (discrimination and retaliation) that Title VII addresses. 141 F.3d 39 (2d Cir. 1998) The ADEA’s employee-number requirement is twenty employees. 296 F.3d 810 (9th Cir. 2002) Mousa v. Lauda Air Luftfahrt, A.G., 258 F. Supp. 2d 1329 (S.D. Fla. 2003); Davenport v. HansaWorld USA, Inc., 23 F. Supp. 679 (E.D. Miss. 2014).

Mostly for that reason, the dissenting judge would have ruled that foreign employees outside the United States did not count towards Title VII’s employee threshold. Picking up on these threads, several district courts since Kang have also noted that Title VII and the ADEA have a key difference in how employees are defined versus how they are protected. As discussed above, under the ADEA, the statute expressly counts all employees in determining whether the statute applies but only protects a subset of that group. This was, in part, the reason the Morelli court believed that domestic and foreign employees could be counted in determining that the ADEA applied; there was no way to read the ADEA as statutorily excluding them. But Title VII defines as the same the employees it counts and the employees it protects, and it excludes from its protection foreign employees working outside the United States (something the ADEA does not do). Several district courts have thus rejected Morelli in the Title VII context and concluded that Title VII excludes foreign employees working overseas from the employee-number count.6 As discussed in the introduction, this incongruity between circuits and laws does not have far-reaching implications for many employers. It is, however, a crucial question for practitioners who often work with foreign employers—and especially those with limited but extant operations in the United States or those looking to expand or start operations in the United States. Defense practitioners, in particular and in this context, should familiarize themselves with the arguments made by the district courts as to why Morelli would not extend to Title VII. It is an unanswered question in many federal circuits, and there is legitimate reason to believe that cases like Morelli and Kang interpret Title VII incorrectly. Practitioners familiar with these arguments will be wellequipped to brief them when applicable. Jessica L. Dark is a partner and Jeffrey C. Hendrickson is an associate at the Oklahoma law firm of Pierce Couch Hendrickson Baysinger & Green. Both practice primarily in the areas of labor and employment, government liability and general tort litigation. Addi Book, a law student at the University of Oklahoma College of Law, assisted in the preparation of this article.


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My Boss the Algorithm

EU prepares legal framework to shape AI in the workplace Dr. Jan Tibor Lelle, y LL.M.

INTRODUCTION Whether on social media such as LinkedIn, Twitter and Instagram or in the HR department of many companies, algorithms are used in almost all areas of our modern lives. And while the prospect of using a “digital colleague” to boost effectiveness is tempting, we also see various concerns related to the fight against discrimination and data protection in the workplace. The European Union (EU) has recognized these risks, and it has proposed a new legal framework that aims to regulate artificial intelligence (AI) and limit its risks – particularly in an HR context. This article gives an overview of the current legal situation in Europe and the essential aspects of the new EU legal framework for AI. We will then look at problems connected with data protection and anti-discrimination laws when using AI. We conclude with suggestions for a best practice approach so corpora-

and

Diana Ruth Bruch

BUSE

tions can legally and successfully include the use of AI in their HR strategy. WHAT’S UP FOR AI IN EUROPE? While AI technology has steadily advanced, the law has so far been trailing behind. However, in recent months, national legislators in the EU, such as Germany, tried to take steps to regulate AI. This includes, for example, the German Works Council Modernization Act. This Act contains a new co-determination right for employee representatives in the field of AI and the right of a works council to consult an expert if a company uses AI. Germany is not the only EU-country struggling with how to use AI. Although 20 EU member states have adopted a national strategy on AI (a strategy that provides an overview of national AI policies), there is still disagreement about how AI should be defined and regulated.

ON THE HORIZON: THE NEW EU FRAMEWORK ON AI This lack of clarification and the insufficiency of existing legislation to address the specific challenges AI systems may bring was closely followed by the Commission of the European Union (the EU’s body to propose new laws). The Commission suggested a legal framework on Artificial Intelligence in April 2021. The EU approach wants to ensure people’s safety and fundamental rights regarding the specific use of AI. The proposal sets out a nuanced regulatory structure that bans some uses of AI, wants to heavily regulate so-called “high-risk uses,” and could lightly regulate less risky AI systems. The legal framework will apply to private actors inside and outside the EU as long as the AI system affects people located in the EU. Thus, it can also concern users of so-called high-risk AI systems, e.g., a business that uses AI-powered screening


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tools when hiring staff. The proposal also calls for brutal penalties, including administrative fines against companies in violation of the framework of up to 6 % of their total worldwide annual turnover. The regulation could enter into force in the second half of 2022 and be applicable later. Although the proposed regulation is still in its early stages, once it is adopted, the AI regulation will be directly applicable for every EU member state, comparable to the General Data Protection Regulation (GDPR). AI AND THE FIGHT AGAINST DISCRIMINATION IN THE WORKPLACE Another crucial aspect is whether or not AI could be biased when performing its tasks and therefore can or cannot discriminate against (potential) employees. In fact, AI poses a significant risk that automated algorithms, like humans, are not immune from bias. But how can a machine/code be biased? The discussion surrounding this issue has been known in the U.S. for quite some time. An algorithm learns from data it receives and is therefore capable of adopting inherent biases. If this data is unintentionally biased, e.g., a company has in the past hired more employees of a particular ethnic group, and the data is fed to the algorithm, it will automatically sort out more résumés of those members from the same group. In this regard, reliance on computerized decision-making can unknowingly cause employers to make decisions that violate laws enforcing anti-discrimination in the employment relationship, e.g., the German General Act on Equal Treatment. Regarding anti-discrimination laws, the so-called “black-box” nature of AI can create another challenge in fighting discrimination. It is often impossible to find out why an algorithm has made a decision and reached a certain outcome. Then, it might become difficult to judge whether an employee has been unfairly disadvantaged. As a result, it will be much more difficult for corporations to defend themselves against discrimination claims since it is hard to explain why, for example, a candidate was rejected. However, being able to provide such an explanation is key in fending off a discrimination claim in court. Any successful defense will require the employer to present objective reasons why a certain candidate was favored above another. That AI can be biased has been recognized at the European level and is now being addressed by the Commission of the EU as well.

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AI AND DATA PROTECTION LAWS The second important field is protection of data while using AI since all businesses in the EU must follow the GDPR as the major legal framework for data privacy. This concerns mainly the following GDPRprovisions: • Principle of transparency according to Art. 5 section 1 a) and Art. 12 GDPR, meaning that data must be processed in a transparent manner, which can be difficult because of the “black-box nature” of AI. • Principle of data minimization according to Art. 5 section 1 c) GDPR, meaning the amount of data gathered must be limited to what is necessary in relation to the purpose for which they are processed. AI often collects such a volume of data that the original purpose is far exceeded and no longer falls within the scope of what is necessary. • Processing of special categories of personal data according to Art. 9 GDPR, when entire job interviews are recorded or even a video of the interview is evaluated. The algorithm could thereby identify a speech impediment or other characteristics that fall under Art. 9 GDPR. Unless the candidate has given explicit consent to the processing of such data, this processing of data can be a violation of the GDPR. • The right not to be subject to a decision based solely on automated processing under Art. 22 section 1 GDPR, in cases where a candidate is rejected solely on the result of an intelligent screening tool. HOW TO USE AI IN THE WORKPLACE – AND BE COMPLIANT? Since a digital colleague does not exactly come with an instruction manual, many companies will ask themselves how to stay compliant with European anti-discrimination and data protection laws while using AI. We see two important fields of action where employers should be active to minimize legal liability: Regarding anti-discrimination

It should be closely monitored whether and to what extent discrimination can occur. What kind of data is used to “feed the algorithm”? Is the data of previously hired employees used as training data? To prevent legal risks, minorities must be adequately represented in the training data sets. Companies should also monitor the outcome of an algorithm. Does the

outcome adequately represent the various minorities? Any employer should be able to explain why a particular candidate was rejected in order to be able to fend off discrimination claims, e.g., based on gender or race or age in court.

Regarding data protection

Companies also need to comply with GDPR’s data protection requirements, namely the principles of data minimization and transparency. Even though data minimization may, to a certain extent, water down the usefulness of AI (as it must be provided with a large volume of data to learn), this concept should not be ignored. Businesses should therefore implement technical and organizational measures to ensure that the amount of data fed into the algorithm and the gathered data does not exceed the scope of what is necessary. All types of data which is processed should be reviewed. Is the algorithm collecting and processing sensitive data in the sense of Art. 9 section 1 GDPR? If yes, has the employee or candidate concerned given her/his explicit consent? To stay compliant with Art. 22 GDPR, the final decision should always be made by the human being in charge of the hiring process.

Even though the new EU regulation on AI is still a way off, it is worth looking at the upcoming changes, not least because it will be an absolute novelty. Additionally, regarding the current use of AI, companies should pay particular attention to data protection and anti-discrimination law in order to avoid potential legal threats. As often, being and staying prepared is the ideal way of risk insurance.

Dr. Jan Tibor Lelley, LL.M. is a partner at BUSE in Germany and works in the firm’s Essen and Frankfurt am Main offices. Jan works exclusively on labor and employment law cases. He can be reached via lelley@buse.de and @JanTiborLelley Diana Ruth Bruch is a trainee lawyer at BUSE in Germany and works in the firm’s Essen office.


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y He o G ogle!

Whed rihedt ? t r ea rt is f

Nicholas Maho, ney P.E., CFEI, CVFI

Hey Google! Where did the fire start? It sounds like a simple question, but it’s not that easy! Siri, Alexa or Google Home devices can play music, relay the weather or tell you the latest sports scores, but what if these devices could also help with fire investigations if an accident strikes your home? It turns out they can, and it’s more than a simple question. Smart home devices such as smart speakers, thermostats and security cameras have increased in prevalence in recent

S-E-A

years. Some insurance and utility companies have even started offering incentives for smart home device installations. In some cases, these companies partner with device manufacturers to provide packages, including thermostats, cameras and security sensors. The benefit for homeowners is the ability to better manage power consumption or manage threats like burglary, fire or water damage. For insurance companies, the benefit is a potentially smaller

claim value when the insured is notified early or possibly remotely about these threats, thereby reducing damage and the costs for repairs. Broadly speaking, a smart home device is any electronic device in your home, usually with wireless capability, that can act autonomously or interactively. Common examples are thermostats such as the Google Nest, doorbell/security cameras such as the Amazon Ring or smart speakers like the


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Amazon Echo. The market has also grown to include larger products such as ranges, microwave ovens and refrigerators. Smart home devices are typically accessible over the home’s Wi-Fi network or a user’s mobile phone via Bluetooth. Even for products without a wireless connection, there is now the possibility for that device to be controlled remotely. Smart plugs and smart switches can turn any outlet into a piece of smart home technology. Aside from wireless connectivity, smart devices almost always include one or more electronic sensors, a processor and onboard or cloud-based data storage. Examples of electronic sensors in smart home devices include cameras, microphones, temperature sensors and motion sensors. Each of these types of sensors can provide useful information for fire investigators. A typical security camera may pair a motion sensor with a camera to not only detect intruders but also detect the motion of flames or smoke and begin video recording. Many devices, including thermostats, can monitor the temperature in a room and track a fire’s progression through a structure. Smart home speakers can record fire-related data as well. A feature added to Amazon’s smart speakers includes the ability to monitor and record smoke alarm activation sounds while the homeowner is away. When the feature is enabled, a notification will be sent to the owner’s mobile device in the event a fire is detected. These are just a subset of potentially useful sensor data, but none of these sensors can be used unless the data is processed and stored. Processors are the brains of a smart home device, but the most intensive processing, especially for speech and video data, is often done at a remote data center. For example, only the word “Alexa” is deciphered by your speaker if you ask, “Alexa, what is the weather forecast today?” The entire question is then processed and stored in the cloud (at a data center). Data retention is one critical differentiating factor among manufacturers. Depending on the device and manufacturer, cloud-based data could be deleted automatically, after ten days, as in the case of the Nest thermostat, or retained indefinitely as in the case of Amazon’s Alexa devices. With such a variation in data retention, preservation of evidence for smart device data presents emerging legal issues. In some cases, it may warrant sending a preservation of evidence letter to the device manufacturer. This discrepancy in retention policies compounds the need for timely fire investigation by a qualified fire investigator. An increase in ownership of smart

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home devices has led police and fire departments to attempt to utilize their data. Some manufacturers allow consumers to opt-in, providing public agencies access to data like camera footage to aid with an investigation. Even without direct access to data, public agencies have seen benefit in these tools. Recently, in several cases in Virginia and Washington, smart smoke detectors were attributed with reducing fire service response time. In these cases, the homeowners were away when they received alerts on their mobile phones indicating smoke was detected. The homeowners were able to call 911, and the fire departments extinguished the fires before there was extensive damage to the homes. A quick response from the fire service can limit property damage, but it can also save more evidence of the fire’s origin and cause. The evidentiary benefits of smart home devices extend further when considering the digital data available and its potential use in fire investigations. To utilize the data from smart home devices, a fire investigator must understand smart home device construction, how these devices store data and how exactly that data can assist in fire origin and cause investigation. The use of electronic data in fire investigation is not a new idea. Witness information and/or electronic data is one of the three recognized sources of information for origin determination listed in the 2021 edition of NFPA 921, Guide for Fire and Explosion Investigations. As part of investigating a fire, using the scientific method as defined in NFPA 921, a fire investigator must collect data, analyze the data, develop hypotheses and test those hypotheses. The most fundamental part of the fire investigator’s job comes in the development and testing of hypotheses of the origin and cause of a fire. Smart home technology simply provides another source of data that a fire investigator can use to develop origin and cause hypotheses. Timeline development is one area where smart device data can help develop a hypothesis. A timeline using such data could incorporate events identified in video footage, but other data from smart devices can also be utilized. Many smart home systems keep a log of each device’s status along with a time stamp, indicating when a device connected to Wi-Fi or when communication was lost. When fire attacks such a device causing it to lose power, the event is time stamped and logged. Now, consider a home - with several such devices that was completely burned. Rather than processing the entire fire scene, an investigator can reduce the area of interest by examining

data from the smart device log, identifying which device lost power first. Smart home technology may also complicate a fire investigation. Smart home devices are connected to an owner’s home network and often connected to the internet such that they are accessible via the owner’s mobile phone or tablet. This connectivity means that fire investigators must consider the possibility of a remotely initiated fire. With appliances such as microwave ovens and ranges being given smart capabilities, the possibility exists for ill-intentioned users or hackers to remotely start a fire. For a fire investigator, these scenarios represent more potential hypotheses for fire origin and cause, but the evidence to support these hypotheses may not always be easy to obtain. A question often raised in relation to digital data is one of ownership. If a consumer buys a smart device, who owns the data recorded on the device? In the European Union, regulators have attempted to address the issue head on with the General Data Protection Regulation (GDPR), which, among other things, attempts to require that individuals own their data and can access or delete the data upon request. Recent legislation in the United States has been more focused on security. So, as of the writing of this article, the privacy policy for a smart home product may include provisions that the manufacturer owns and may retain the data stored in its data centers. In that case, a subpoena may be required to gain access to the data. Many common products in the home can now be considered smart home devices. Data from these devices can be potentially useful for fire origin and cause determination; however, fire investigators must know what to look for, what questions to ask, and when to enlist the services of a technical expert such as an electrical engineer. From there, time is of the essence when it comes to gathering data. While smart device data is unlikely to be the sole evidence used in determining a fire’s origin and cause, in some cases, it may be the critical piece of data required.

Nick Mahoney, P.E., CFEI, CVFI is an electrical engineer in S-E-A’s Atlanta, Georgia, office. His responsibilities include the investigation of electrical faults and malfunctions, particularly those suspected of causing a fire, equipment damage, or personal injury due to shock or electrocution.


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Drafting a Diversity, Equity and Inclusion Policy for your Company

Erin Nathan

Many organizations have begun to realize that including a Diversity, Equity and Inclusion Policy and implementing that policy is critical for recruiting, retention, job satisfaction, and client development. For many industries, like the law, where diversity has not increased, even with more diverse individuals graduating from

Simons Perine Moyer Bergman PLC

law schools every year, new tactics are being taken to increase diversity, equity and inclusion, one being to draft a Diversity, Equity and Inclusion (“DEI”) Policy. For example, according to the American Bar Association (ABA) National Lawyer Population Survey for 2021, 85 percent of lawyers are white and 63 percent

are male – statistics that have been fairly stable since 2011. Yet, many lawyers understand that increasing diversity and inclusion leads to more diverse opinions, which in turn leads to better decisions. The ABA collected studies in its article Banking on Diversity: Diversity and Inclusion as Profit Drivers – The Business Case for Diversity


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which noted that over and over diversity and inclusion are drivers for law firm profitability. In the law, clients may drive that change, for example, since many corporate clients have begun to demand diversity when determining which law firms they will hire. Corporations may create formal policies, like requiring a certain percentage of female and/or BIPOC individuals as partners, or more informal policies, like requiring a female and/or BIPOC individual to be lead counsel on matters. The Wall Street Journal reports that Microsoft Corp., U.S. Bancorp, Uber and Intel are asking the law firms they hire to detail how many diverse lawyers they employ and whether those lawyers are assigned meaningful work. Novartis AG reports it withholds 15 percent of legal fees if diversity benchmarks are not met, and Intel will only hire U.S. law firms whose U.S. equity partnerships are comprised of at least 21 percent women and 10 percent underrepresented minorities. State bar associations have also begun to create incentives for law firms to create and participate in diversity, equity and inclusion programs. My own state bar association’s young lawyers division created a diversity, equity and inclusion pledge for the state’s lawyers. So, if you too believe that a Diversity, Equity and Inclusion Policy (“DEI Policy”) is necessary for you, carefully consider the launch of such a policy. Real and meaningful change will not occur if your organization merely pastes a policy into its handbook or procedures. Rather, it will be critical for all participants, from the newest staff member to upper management, to participate. When launching a DEI Policy and related initiatives, they should not be a “top-down” approach, but rather stakeholders at a variety of levels within your company should participate so that the impact is meaningful and long lasting. If the approach is one pushed down from management, there is opportunity for a lack of engagement, participation and, potentially, the loss of any meaningful change. The only way to launch a successful DEI Policy and related initiatives at your company is to provide transparency and inclusiveness at each level of launch. PRE-LAUNCH: EVALUATE Before drafting a DEI Policy, consider reviewing internal data to determine what is and is not working at your organization. Generalized goals like “we want to hire with more diversity” can be difficult to implement and can render meaningless without reviewing data on whom you currently hire, how you hire (e.g., where you recruit) and who participates in hiring decisions.

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Before drafting a DEI Policy, review your organization’s mission statement and/ or statement of values. If you do not have such a statement, consider drafting one. A mission statement or a statement of values should consider all interested individuals – owners, managers, employees, vendors and clients - and provide direction for decision making and action for all levels of engagement. The statement should include general guidance and rules of engagement and be consistent with how the organization will operate both internally and externally. Another step before even drafting the DEI Policy is to consider and review your educational efforts. Consider: What types of education and training does your company offer on diversity, equity and inclusion? Does your company train on implicit bias? Does your company sponsor outside diversity, equity and inclusion efforts? Are there any barriers to educational opportunities? For example, is everyone at your organization provided the same opportunities to attend courses on diversity, equity and inclusion or are those opportunities only afforded to more senior-level executives and managers? If you are a law firm and not currently offering education and training on DEI and/or implicit bias, a good resource is your local bar association as many offer coursework, initiatives and guidance on how to provide this key education. PRE-LAUNCH: DRAFT After evaluating your current practices and training, it is time to review any existing policies or draft a new DEI Policy. So, what should go into a DEI Policy? A successful DEI Policy navigates concepts relating to both values, current activity and planned activity:

Values: Your DEI Policy should explain the organization’s values and why diversity, equity, and inclusion matter to the company, both internally and externally. Meaning, these value statements should translate not only how the company treats its owners, managers and employees, but also address how the company will navigate in the community. Approach: Your DEI Policy should explain how the organization approaches diversity, equity and inclusion with respect to hire, retention, promotion, discipline and engagement. Your DEI Policy may even express an intent regarding client selection and approach. Initiatives and Goals: Your DEI Policy should address any initiatives your organization is taking on as a part of this policy. Perhaps in your review, you found areas in need of improvement. Your DEI Policy is a

place to set goals and timelines for achievement. PRE-LAUNCH: REVIEW After you have drafted your DEI Policy, it should be reviewed, and not just by management. For maximum transparency and accountability, consider forming a committee of management and non-management individuals to review the DEI Policy and provide input. LAUNCH! You have evaluated the current state of your organization’s DEI efforts, identified areas for improvement and drafted a policy with input from a variety of individuals within your organization – now it is time to launch your policy. To successfully launch your DEI Policy, you should consider a training component to couple with that new policy. Sending out an email with the new DEI Policy may simply get ignored; however, if you present the new policy in the context of a dynamic and relevant training, your company is more likely to remember concepts and participate in the new initiatives. MONITOR, EVALUATE AND SHARE After you have launched your DEI Policy and provided dynamic training, your job is not done! You should continue to monitor efforts, evaluate goals, and, as necessary, modify. You may find that a goal you thought would be easily met, like training all employees, could not be accomplished. Evaluate with your DEI committee why that goal was not met, get feedback, and perhaps revise your strategy to encourage participation. Share those results with the entirety of the organization. You may even find you get more participation the more transparent you become. Share your efforts with your community. Clients are increasingly focused on the DEI efforts of the companies and law firms they hire. External communication could be in the form of a more formal press release about diversity efforts, or it may be required as part of your next pitch.

Erin Nathan is a partner in Simmons Perrine Moyer Bergman PLC’s employment law practice group. She provides counseling, workplace training and represents businesses and individuals before state and federal courts and agencies involving all aspects of employment law. Erin can be reached at enathan@spmblaw.com.


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For Your Eyes Only Preventing the Discoverability of Forensic Reports in Data Breach Litigation

Karen Painter Randall

Recently, there has been an unprecedented amount of domestic and international activity from government and law enforcement to counter the operations of cyberattacks. Despite these initiatives, threat actors continue to attack enterprises at alarming rates due to the large amount of potential profit. According to statistics released by Coveware in 2021 for Q3, the average cost of a data breach rose to $3.92 million, and the average ransom payment was $139,739. With cybercriminals always seemingly one step ahead, it is not anticipated there will be much of a change in 2022. A data security breach generally requires the use of outside forensic experts to contain and remediate the incident to ensure an organization’s systems are secure. Often the nature and scope of the forensic investigation is memorialized in a formal report. Because one of the potential consequences of suffering a breach is subsequent data breach litigation, an issue that arises is whether these reports, along with the communications surrounding them, are subject to disclosure during discovery. A review of the current trend in federal case law

and

Stevn Kroll

Conel Foley LLP

demonstrates that the work product and/ or attorney-client privilege may be eroding when it comes to protecting these highly confidential reports. As such, it is important that a great deal of care is used both when communicating with outside experts and in disclosing findings in a report. Moreover, companies must review their protocols for invoking these privileges in light of recent decisions by several district courts. SUMMARY OF CASE LAW Until recently, there have been only a few cases dealing with the issue of disclosure of forensic reports prepared after the investigation of a data security incident. In 2015, in In re Target Corp. Customer Data Sec. Breach Litig., a Federal District Court of Minnesota held that a forensic report was protected from disclosure under the attorney-client privilege. In reaching this decision, the court held that the report was prepared for Target’s in-house and outside counsel in anticipation of litigation and not for remediation of the breach suffered by Target. Importantly, litigation was already pending and was reasonably expected to con-

tinue. Thereafter, in 2017, in In re Experian Data Breach Litig., a Federal Central District of California also denied the disclosure of a forensic report, this time based on the work product doctrine. In particular, the court held that the preparation of the report was intended to assist outside counsel for the affected entity. The court also explained that because the report was not provided to the company’s internal incident response team, this was evidence that, but for the anticipated litigation, the report would not have been prepared in substantially the same form or with the same content. However, the trend has shifted recently. On June 25, 2020, in In re Capital One Consumer Data Sec. Breach Litig., a Federal Court for the Eastern District of Virginia held that a report commissioned by an impacted entity, post-incident, was discoverable because: (1) there was a pre-existing relationship with the forensic vendor and the Scope of Work provision of the contract designated it to be a “business” incident response report; (2) the report was not drafted in anticipation of litigation; (3) dissemination of the report was not limited


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to a small number of recipients; and (4) the company paid for the report from a business expense account, not from a legal or litigation budget. Thereafter, on January 12, 2021, in Wengui v. Clark Hill, PLC, a Federal Court for the District of Columbia ordered a company to produce its forensic report in discovery, despite the fact its outside counsel ordered the report from the third-party forensic vendor for purposes of investigating the nature, scope and cause of the incident. The court refused to apply either the attorney-client or the work product privilege because the purpose of obtaining the report was investigational, not in anticipation of litigation; nor was the purpose of outside counsel’s consultation with the vendor intended to assist in facilitating legal advice. Most recently, on July 22, 2021, in In re Rutter’s Data Security Breach Litig., a Federal Court for the Middle District of Pennsylvania ordered the disclosure of a forensic report where the third-party vendor’s Scope of Work was to “conduct forensic analyses on the company’s card environment and determine the character and scope of the incident.” The court declined to apply the work product privilege because the purpose behind the report was not related to litigation; the attorney-client privilege did not apply because the report was not shown to do more than provide facts regarding exploited vulnerabilities in the system. Put another way, the report did not assist in the provision of legal advice. STRATEGIES FOR KEEPING FORENSIC REPORTS SECURE These recent decisions indicate substantial measures are necessary to protect from discovery certain investigative reports or communications with cybersecurity experts. Before engaging an expert, it is imperative to consult with outside counsel to ensure all of the privileges and protections are available by performing the following tasks. First, an organization should make sure outside counsel is directly involved with the retention of the forensic expert at the outset. Furthermore, outside counsel, not the impacted organization, should retain the expert. This will strengthen the argument that the expert’s work, including communications, is for the purpose of assisting counsel. Second, during the investigation, counsel should be careful to manage verbal and written communications with experts. Several of the court’s decisions turned significantly on the recipients with whom the investigative reports were shared. The

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courts cited the defendants’ decision to share the reports with non-lawyers as evidence the reports had essentially non-legal purposes. To that end, companies should disseminate protected reports sparingly and must be able to articulate a legal purpose for sharing the report with each recipient. Accordingly, at the beginning of an investigation, a company should clearly define the incident response team that will assist counsel in providing legal advice. Any communications within this team should be clearly marked as privileged and copied to legal at all times. Third, the language used in the Statement of Work (SOW) is critical to protecting the work performed by a forensic expert. As noted in one of the recent court decisions, the description of services in the operative letter agreement between the forensic expert and outside counsel should be different than any prior, pre-breach SOW between the security expert and the company. This will demonstrate that the work performed by the expert in response to the data security incident would have been performed regardless of any litigation arising from the specific incident. Where applicable, the SOW should cite specific reasons for the consultant’s work related to protecting the company from prospective litigation, since a company’s need to analyze its breach reporting obligations, while legal in nature, does not make the investigation report protected work product because such analysis was not in anticipation of litigation. Merely having an SOW between an affected business, a consultant and a lawyer does not automatically create privilege as care must be taken to ensure communications are either in anticipation of litigation or for the purpose of providing legal advice. Fourth, companies should emphasize the distinction between pre- and post-incident work and enter into entirely new contracts to govern an expert’s forensic work following a security incident. Where feasible, companies should consider engaging a separate expert for incident response work to differentiate the scope of work. Accordingly, an organization should consult with outside counsel and prospective cybersecurity consultants prior to an incident occurring as part of formulating an incident response plan to determine the best way to contract for the necessary services in the event of an incident. Lastly, an organization should anticipate disclosure by a court and prepare to mitigate its impact. A company should limit email and other written communications and determine whether a written report from the cybersecurity expert is necessary

before requesting one. Additionally, an organization should not include technical or other remedial recommendations in the investigative report, which could defeat privilege or work product claims on the grounds they are not related to legal advice. Moreover, if the organization cannot follow the recommendations placed in writing, it could potentially be damaging later in discovery. Internal members of the incident response team should be reminded about the importance of maintaining the privilege. CONCLUSION The landscape for asserting the attorney-client privilege and/or attorney work product protection to communications and reports prepared by an expert is continuing to evolve. When preparing an incident response plan, a company should consult with outside counsel regarding these recent decisions to ensure their protocols for engaging cybersecurity experts and other vendors are consistent with maintaining privilege should litigation or a regulatory enforcement action follow. These protocols should then be tested through tabletop exercises. Ultimately, no matter what precautions an organization takes, a court may still determine expert reports and communications during incident response may be discoverable. The steps described above may reduce the risk, as well as mitigate its impact should a court order its disclosure during subsequent data breach litigation.

Karen Painter Randall chairs Connell Foley LLP’s Cybersecurity, Data Privacy and Incident Response Group and leads its 24/7 Breach Response Team. Karen has handled hundreds of breach response matters and advises on proactive measures, including security risk assessments, policies/procedures, security awareness training, incident response, tabletop exercises and cyber liability insurance. Steven Kroll advises businesses and business owners on the wide range of ever-evolving issues related to cybersecurity and data protection, including cyber breach notification, regulatory response, litigation, policies and procedures, and employee awareness training.


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No More Finger-pointing How Today’s Juries Are Emphasizing Personal Responsibility in Their Verdicts

Clint Townson, Ph.D

“You reap what you sow.” That’s how one New York juror summed up his feelings about pandemic-era litigation, unable to hide his exhaustion with both sides of an insurance dispute in which both parties seemed to be shirking responsibility for their own behavior. The policyholder argued that the exclusionary language was abstruse; the insurer argued that it was not obligated to ensure the individual’s understanding of her own policy. The juror, meanwhile, was joined in his frustration by several others who were searching for either party to own its share of the blame. As the global coronavirus pandemic unfolded, we conducted extensive research into how COVID-19 impacted the litigation community, ushered change across practice areas, and shaped the attitudes of jurors. Through a series of twelve in-depth focus groups across three metropolitan venues (Los Angeles, Houston and New York City) and numerous subsequent mock trials, we

IMS Consultig & Expert Services

have thoroughly explored attitudes and themes relevant to the concept of ‘personal responsibility’ in a litigation context. Across case types ranging from personal injury to securities fraud, we found that jurors wanted parties to take responsibility for their own actions. In the past, we have seen jurors’ empathy override their sense that plaintiffs may bear responsibility for their own harm. After experiencing a pandemic, it seems that jurors are placing an increasing burden on both sides to acknowledge their mistakes. LOCUS OF CONTROL The underlying psychological mechanism that drives jurors’ allocation of responsibility is called “locus of control.” Based on a theory developed by Dr. Julian Rotter, it proposes that individuals perceive the world around them based upon a continuum of personal control. That is, people with an internal locus of control believe that they have

set their own courses, and they feel a strong sense of personal responsibility for their successes and failures. People with an external locus of control believe that outside forces beyond their personal sphere (such as the government, corporations and social factors) have a disproportionate effect on their lives. While this psychological trait frequently predicts juror verdict preferences in mock trial research, COVID-19 appears to have strengthened its application. In our recent research, mock jurors believed that an extreme, unforeseen circumstance like the pandemic does not reduce or eliminate a party’s personal obligations. A cruise liner, for instance, is not excused for poor hygienic standards even though a virus like COVID-19 had not been encountered in recent times. For many respondents, periods of heightened stress and confusion make it all the more imperative that parties be willing to assume personal responsibility


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for the course of events leading to litigation. In other words, such jurors are applying a heavy-handed internal locus of control. While COVID-19 has not stripped jurors of their empathy for plaintiffs entirely, jurors are more open to accepting that plaintiffs have brought harm upon themselves. For example, in an age discrimination case, jurors may be more receptive to arguments that an employee was acting improperly or unsatisfactorily in his role leading to termination. They would view such a plaintiff as causing his own harm by not living up to his responsibilities as an employee. A TWO-WAY STREET Of course, many jurors are applying the same strict standard of personal responsibility to corporate defendants as well. In the above example of alleged age discrimination, jurors would likely hold the company liable if its defense focused entirely on the plaintiff’s actions rather than steps it took to avoid terminating the employee. In these kinds of cases, jurors’ blame on defendants is often exacerbated by factors like power and/or wealth disparities, the severity of the plaintiff’s harm, and whether a plaintiff’s alleged faults were mere technicalities (e.g., paperwork errors). As a result, a mea culpa defense – whereby a party acknowledges its own missteps and focuses instead on causation – may be more effective than ever in certain types of cases. Such a strategy can reframe bad facts and bolster a broader theme of personal responsibility. Consider a product liability case in which the plaintiff pounds the table with internal communications of concern as a ‘smoking gun’ that the defense knew its product was dangerous. From the plaintiff’s perspective, this can be a powerful prompt for getting jurors to consider personal responsibility as a theme. But an effective counter from the defense may involve owning the author’s words and re-shifting focus to the company’s response (additional testing, product adjustments, follow-up research, etc.). When paired with arguments about plaintiffs’ accountability in causing their own harm, mea culpa strategies can be very persuasive. VENUE CONSIDERATIONS Inclinations toward personal responsibility varied widely among the venues in the research, and there are data to suggest the pandemic has strengthened the correlation between locus of control and political ideology. As the idea of “personal choice” has become more interconnected with conservatism, jurors in more conservative venues

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have proven to be increasingly influenced by personal responsibility arguments. Increased political polarization only intensifies this connection. In our research, the theme of personal responsibility undergirded jurors’ general sentiments toward COVID-19 and their views on how society should move forward from the pandemic. Among our Harris County, Texas, respondents – and likely among many citizens throughout the South and rural America – personal responsibility was especially important: people have a right to act individualistically, but they must accept the consequences of their own actions. This response contrasted sharply with most jurors in New York City, where respondents trumpeted the need to make choices that considered the circumstances of others. Thus, an important part of analyzing a trial venue will be to examine not only political ideology but also vaccination rates and local mandates related to COVID-19. All might offer clues into how jurors would view personal responsibility arguments. Moreover, as judges have weighed allowing only vaccinated jurors to serve, attorneys should be concerned about whether this results in a jury pool that skews potential jurors’ locus of control. STRATEGIC IMPLICATIONS From a strategy standpoint, plaintiff and defense teams should be prepared to address personal responsibility – both their client’s/agent’s and the other side’s – in myriad case types. The plaintiff’s team should acknowledge what the plaintiff could control but point out the context in which their client acted and emphasize what the plaintiff could not have reasonably known due to the defendant’s lack of transparency. In this way, counsel can highlight how the harmed party did everything within its power to avoid the harm but ultimately could not due to the defendant’s neglected obligations. For instance, in insurance cases, many of our respondents believed insurance carriers purposely try to obscure policy exclusions, such that, even if a person were to read through the policy, legalese would obfuscate its meaning. As a result, respondents thought it was unfair that individual policyholders were held accountable for something outside of their awareness; rather, insurers had a duty to explicate the limitations of their policies. Meanwhile, defense counsel must strike a balance between expressing sympathy for plaintiffs’ struggles and firmly asserting plaintiffs’ responsibility to recognize the risk they agreed to assume, all the while demonstrating how the defendant took steps to

reduce the risk of harm. Many jurors will have experienced strife during COVID-19 and may empathize with a plaintiff, so it is crucial to avoid marginalizing pandemic-related struggles while still holding plaintiffs accountable for their own choices. For the above insurance examples, we identified no danger in the defense exhibiting empathy for the plaintiff. A show of empathy did not diminish the power of the argument that the plaintiff had an obligation to understand her own insurance policy and its limitations. For this approach to be effective, however, the defense must also acknowledge and accept its own areas in need of improvement. The success of the above tactics heavily relies on rigorous jury selection practices at three key stages. First is understanding the venire in terms of political ideology, COVID19 impact and local government responses. A nuanced appreciation of the jury pool will aid in planning voir dire and supplemental questionnaire design. The second stage is in the courtroom itself; use voir dire to get jurors to discuss how they view personal responsibility and identify those who are least receptive to your themes. Background research into the jurors’ social media frequently reveals where jurors fall along the locus of control continuum. Finally, when the jury is seated, tailor your approach to specific jurors’ concepts of personal responsibility. CONCLUSION All in all, the net outcome of the trials and tribulations of the past two years may be that jurors expect litigants to adequately distinguish their own blame from harm truly caused by the other. The theme of “personal responsibility” resonates because many jurors have been forced to introspect on their own financial and health struggles, and they judge others in this skeptical light. Jurors expect businesses to budget carefully and anticipate downturns; jurors expect individuals to take steps to safeguard their own health and wellness. Trial attorneys should consider how their evidence and case narrative align within this modern mindset.

Clint Townson, PhD is a jury con­ sultant with IMS Consulting. His focus is designing and executing focus group and mock trial designs, as well as conducting statistical analyses to develop juror profiles for jury de-selection.


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Investigationsand Surveillancefor Settlement Doug Marshall

Clients have asked me what I feel is the most critical thing about investigations and surveillance that lead to positive results. Investigations develop the truth, whether beneficial or detrimental to the case. The way to get the necessary information for successful surveillance is to do the preliminary work that details whether you should even do surveillance. Doing surveillance without knowing as much as you can about the case can result in limited activity, and it can possibly harm your case. I have heard many attorneys tell me that they rarely get anything beneficial on surveillance. That could be because surveillance is all that is being done. So many people make a limited inquiry into social media and think that is enough. Please ask yourself, do you know all that you need to know about the internet? WHAT WE CAN LEARN FROM THE INTERNET I separated social media from the duties of my private investigators so I could

Marshal Investiga Group, Inc.

understand the internet in a whole new way. Authenticity is essential, and you will need metadata and the MD5 hash algorithm to prove that you obtained it from a public site on the internet, which will stand up in any court. Over the last six years, our Internet Presence Department has produced impressive results that have changed the direction of our investigations. Though social media is not enough, I want my agents to take what we have learned from the internet and verify what we are reading and seeing on the internet. In one case, we learned the plaintiff was working out at a club. From an initial investigation, the team learned where – and more specifically, in what club - this activity was taking place. Knowing this type of information before the surveillance begins results in a productive video. On the other hand, not completing an internet presence or investigation before surveillance could provide the plaintiff with additional leverage to bolster a claim against the defense.

IS SURVEILLANCE WARRANTED? When preparing for mediation and arbitration, it is essential to remember that you can’t use surveillance if you don’t have it. I would never recommend it in every case, but mediation will go nowhere if you don’t have leverage; surveillance can sometimes be your best tool. If you never requested preliminary work before surveillance, you may be making a big mistake. When surveillance is warranted, and you show up to mediation without the right tools, the result could be catastrophic. For example, you need leverage in mediation, especially when the plaintiff’s attorney has slightly reduced or has not come down from their original demand. If an investigation and surveillance were done before and after the plaintiff’s surgery, you now have the tools you need to convince the other side. Video may show that the plaintiff has been active and ambulating well while walking with a normal gait since the surgery. You can use the video to convince the plain-


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tiff and the attorney to settle with that in mind. It can be challenging to determine when to use the surveillance, especially when you have an upset plaintiff. However, it has been helpful to show the video to the arbitrator or mediator and let them explain to the plaintiff that it would be in their best interest to settle the claim. The right time to produce surveillance must be weighed by how reasonable the other side is, and if they are even close to the authority that has been granted to spend on the claim One mediation comes to mind when a client called, and he asked if we could have an agent go to an attorney’s office in 20 minutes to catch the plaintiff leaving as they were not coming to a settlement. The quick-thinking adjuster suspected that the plaintiff was exaggerating the claim. He noticed him lifting his right arm several times while in a sling. We had an agent there in 15 minutes and saw the plaintiff entering a vehicle of a pre-arranged driver to take him to his apartment. When the plaintiff arrived at his apartment, he removed the sling and used his right arm to grab the handrail. He later walked to a local market and carried a case of beer back to his apartment using the injured arm. Even though the adjuster did not have surveillance at the mediation, he was astute enough to recognize when someone may be untrue in his testimony. The result was a low six-figure settlement from a $4,000,000 demand. DON’T DELAY If surveillance is in your plans, make sure the proper preliminary work is done; this will increase the chances of a positive outcome. In this world of expanding technology and access to so much information on the internet, research and internet presence investigations are vital to the success of today’s surveillance. Without it, you go in blind and have a limited chance to obtain the information you need to determine whether the claim has merit. Also, don’t wait to do your internet searches; if you have a claim with significant exposure, do your due diligence and get an internet investigation at the very least. Each case is not the same and should never be treated as such. Unfortunately, some investigative firms use a cookie-cutter approach and do the same work for every case they receive. Liability claims are different from workers’ compensation claims and so on. The investigator handling the file needs to know the differences to effectively provide the client with the required information to evaluate the severity of the injury.

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Following someone to his office at a desk job for a liability claim offers no real value to a client. We should know early that this person works in an office during the week and should execute surveillance on the weekend to determine the subject’s actual physical abilities. In a workers’ compensation claim, we want to know if a claimant is working. Doing the surveillance during the week and one day on the weekend will be more effective. As investigators, we need to stay informed of the ever-changing world of social media and keep evolving as professionals; that is why it is necessary to make data mining a specialized department. By making this a technical field, the investigator has all the tools and current knowledge to provide the most accurate profile of the plaintiff. LEVERAGING INTERNET TECHNOLOGY RESOURCES When preparing for surveillance, the internet can sometimes provide enough information that makes surveillance unnecessary. We have found webcasts and YouTube content that has been damaging to the plaintiff’s side. One that comes to mind is an individual who, by profession, is a personal trainer who walked around in public with a neck brace but posted a daily webcast of herself working out in her basement. In addition, another subject was kind enough to have himself videotaped as he jumped from an airplane at 10,000 feet. Surveillance was ordered on a case after determining through the internet and investigating that a plaintiff is an I-Fly instructor; the plaintiff provided our agent with an extensive example of how to indoor skydive properly. Even during a pandemic, people were streaming events, and sometimes they became the best resource we had to find the truth about a claim. We have obtained many self-made videos on GTTR.COM where individuals can produce a video of their professional skills and talk about their interests for the world to see. I could continue about how many cases we have solved and where we have saved millions of claims dollars in claims by having the proper knowledge using the internet and investigations. DATA DNA Preserving the metadata or EXIF (exchangeable file format) information from photos is as important as the page itself. I like to refer to this information as data DNA. We use our software to procure this data to make it admissible in court. Without it, you could lose the ability to use vital social media for your case, which will result in you losing the case in court.

Investigating the plaintiff and providing a better understanding of the person’s daily activity is vital before surveillance. For example, we recently had a client who wanted surveillance without checking into the person’s background because an independent adjuster saw this person just a month before. After convincing the client that a background check could be vital to this case, our agent determined that the police arrested this individual on a warrant for theft, and he was still in prison. Going on surveillance would have been a waste of time and money. So instead, investigators will use the content from what is found on the internet and verify it to be true. You have heard the phrase, “Not everything you see on the internet is true.” That is so true, and as investigators, we need to determine whether these leads have any validity. CAPTURING GPS DATA Vehicle sightings is another way to understand a subject’s routine better. Through a database that approved private investigators use, we can obtain GPS locations of a subject’s vehicle that are captured by police, Google, or security cameras. This system is called vehicle sightings and can be used to identify an individual’s habits or even where a transient individual lives. Once these procedures are followed, surveillance can be engaged, and the agent will be equipped with several helpful details as long as we did the preliminary investigation correctly. A good investigation will determine a current verified address, registered vehicles owned by the plaintiff and family, locations where the plaintiff routinely visits, upcoming activities such as recreational, vacations, fishing or hunting, parties, amusement parks, and so much more. I’ll end with this; a good investigator wants his surveillance to help the client determine the merit of a case. Preliminary work done before the surveillance can improve the results that are beneficial to the defense. Doing the necessary preparatory work will save time and money as well as ensure better results on surveillance.

Doug Marshall, president of Marshall Investigative Group, has been doing insurance investigative work for more than 30 years. Well known in the industry, he has been a speaker at CLM, TIDA, USLAW and the Chicago and Orlando TLA. Marshall Investigative Group’s unique approach to investigations is complemented by its integrity and attention to detail.



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www.mi-pi.com Toll Free: 855.350.6474 Fax: 847.993.2039

Valentina Benjamin SIU Manager vbenjamin@mi-pi.com


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FACES FROM THE 2021 FALL CLIENT CONFERENCE IN COLORADO SPRINGS. Rod Umberger, chair of USLAW NETWORK from Williams Kastner in Washington and Oregon, meets with Erica Dhawan, author, entrepreneur, and keynote speaker at the Fall 2021 USLAW NETWORK Client Conference.

Hanson Bridgett Partner Dennis McQuaid (pictured) and his wife, Susan, were honored at the Night At The Tuscany Gala held by the North Bay Children’s Center. They were honored with the prestigious Champion for Children Award for 2021, for their long and impactful contributions to NBCC and children in the North Bay in general. Hanson Bridgett has long been a sponsor of this organization and had a table consisting of proud partners and clients. Hanson Bridgett also sponsored the Bay Scholars’ 8th Annual Giving Thanks by Giving Back Luncheon, Swords to Plowshares Veteran’s Day Concert & Reception, and the Law Foundation of Silicon Valley’s LACY Honors Virtual Luncheon in recognition of the Law Foundation’s work to improve the lives of children and youth facing abuse, entry into the foster care system, and homelessness.

Fall 2021 USLAW NETWORK Client Conference attendees enjoyed time on the ice (and learning the nuances of curling) at the World Arena Ice Hall, a U.S. Olympic training facility. The Ice Hall is one of the finest training facilities in the world and is home to dozens of world-class figure skaters and the renowned Broadmoor Skating Club.

Sweeny, Wingate & Barrow, P.A. attorneys Marshall Crane (left), Adam Crain (center) and Grace Brown (second from right) attended the “Give to Gain Gala” benefitting the South Carolina Special Olympics in October. The lawyers have been involved with the Special Olympics through its connection with the Sout Carolina Bar Young Lawyers Division.

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In September, Baird Holm was proud to sponsor and participate in the Out of Darkness Omaha walk. The purpose of the walk is to raise awareness about suicide prevention.

Jones, Skelton & Hochuli, PLC (JSH) in Arizona sponsored the annual 911 Tower Challenge to honor those who lost their lives on 9/11/2001, and in continued honor of first responders and military. The event was held at the Gila River Arena, home of the NHL’s Arizona Coyotes. Participants climbed 2071 steps representing the 110 floors of the World Trade Center’s Twin Towers. The JSH team included Derek Graffious, Michele Molinario, Joe Popolizio, Brian Ripple and Julie Wanner.

Holly Howanitz, a partner at Wicker Smith in Jacksonville, Florida, regularly participates in her local running scene, and it’s often a family affair. She often crosses the finish line with her husband and son by her side. Together, Howanitz and her family have participated in more than a dozen races in the last year. Through running, they have helped raise vital funds for many organizations like the Children’s Miracle Network, local high school track and cross country programs, the “beautification of Historic San Marco,” Ronald MacDonald House and more.


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SPMB Participates in Monarch Research Planting Forward Program

Rivkin Radler launches two new blogs Healthcare and tax law take center stage through two new blogs: Rivkin Rounds and TaxSlaw. Eric D. Fader, a partner in Rivkin Radler LLP's health services practice group, has developed and launched Rivkin Rounds, positioned as "your prescribed dose of health law news." Rivkin Rounds offers recent developments in legislation and public policy and their impact on the businesses of healthcare. Louis Vlahos, a partner in the firm's tax practice and who was named the No. 2 lawyer on the topic of tax law by JD Supra for 2021, has developed TaxSlaw, where "those hungry for tax knowledge come to chow down." Rivkin Rounds is available at www.rivkinrounds.com. TaxSlaw is available at www.taxslaw.com.

Simmons Perrine Moyer Bergman PLC (SPMB) in Cedar Rapids, Iowa, partnered with the Monarch Research Project (MRP) to purchase trees for attorneys and staff who were impacted by the 2020 derecho. In October, a total of 77 trees were distributed to help restore the tree cover in Linn and surrounding counties. Attorneys and staff chose from a variety of high-quality trees native to Iowa. All the trees offered serve as habitat to many native Iowa pollinators, birds and wildlife and are core species of Iowa forest ecology. MRP first distributed trees in the fall of 2020 and again in the spring of 2021, planting 15,000 trees. This fall they have distributed an additional 14,500 trees.

It’s Settled: The Ametros Podcast Ametros, USLAW’s official future medical fund management partner, hosts a podcast called It’s Settled: The Ametros Podcast.

Each episode digs deep into the humanity of workers’ compensation and insurance claims. The conversations explore the stories of injured people and those who support them, plus the important work professionals do in the industry. Hear the authentic and inspirational stories of those injured at work or in an accident, their loved ones, and industry professionals. Podcast guests discuss their experiences living with a life-changing injury or their professional initiatives that make a difference within the insurance industry. It’s Settled is hosted by Shawn Deane, general counsel for Ametros.

and the awards go to...

Mark A. Solheim (left) of Larson King LLP in St. Paul, Minnesota, and Donald L. Myles, Jr. (right) of Jones Skelton & Hochuli PLC in Phoenix, Arizona, were named recipients of the 2021 USLAW NETWORK O’Hagan Award. The award is named after Jim O’Hagan, a founding member of USLAW, and is given annually by the USLAW Chair to a USLAW member(s) who demonstrates outstanding service and commitment to the organization’s guiding principles, mission, and objective. Read more.

Charles L. Norton, Jr. (left) and Linda G. Thoede (right) are the co-recipients of the 2021 USLAW NETWORK Bill Burns Award. USLAW created the award to annually recognize a client who has shown outstanding service and dedication to USLAW. The award is named after Bill Burns, a longtime transportation risk management and litigation leader for Landstar System.

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f irms

on the move Attorneys from Baird Holm were selected to serve on numerous executive committees for Nebraska State Bar Association law sections, including Sarah M. Gorsche (Labor Relations & Employment Law Section), John P. Heil (Natural Resources & Environmental Law Section), Michael W. Chase (Health Law Section), J. Scott Searl (2022 Vice-Chair, Corporate Counsel Section), Lindsay K. Lundholm (Corporate Counsel Section), Amber N. Preston (Business Law and Securities Law Sections), Kenneth W. Hartman (House of Delegates Chair-Elect), Thomas O. Ashby (2002 Chair, Bank Attorneys Section) and Jeremiah C. Hollembeak (Bank Attorneys Section). Jill Robb Ackerman finished her term as the Nebraska State Bar Association president. She was selected to serve on the Nebraska State Bar Association 2022 Executive Committee as the immediate past president. Baird Holm David Levy was elected to serve as the president for the History Nebraska Board of Trustees. Baird Holm partner Lindsay K. Lundholm was appointed to the American Arbitration Association (AAA) Roster of Arbitrators. Baird Holm attorney John R. Holdenried was selected as a Fellow of the American Health Law Association (AHLA). Baird Holm Partner R.J. (Randy) Stevenson received the University of Nebraska at Omaha’s College of Public Affairs and Community Service (CPACS) Alumni Award. In addition to his appointment to the New York State Bar Association Task Force on Racial Injustice and Police Reform, Oliver Young of Barclay Damon has been appointed to the organization’s Task Force on Racism, Social Equity, and the Law. Linda Clark of Barclay Damon has been named co-chair of the legal committee of the National Association for Specialty Pharmacy. On behalf of the NYS Bar Association Cannabis Law Committee, Jason Klimek of Barclay Damon wrote the tax section of the committee’s comments on a discussion draft of the Cannabis Administration and Opportunity Act. The comments were submitted to Senator Charles Schumer’s office on his proposed federal-level cannabis legalization legislation. Carr Allison co-founder Charles Carr has been re-elected to the Trucking Industry Defense Association (TIDA) Board of Directors. TIDA is a nonprofit association whose members are devoted to sharing knowledge and resources for defense of the trucking industry. Mitchell W. Taraschi has been named co-chair of Connell Foley LLP Construction Group. He will serve as co-chair alongside Michael X. McBride. Click here to read more. Michael X. McBride, co-chair of Connell Foley LLP Construction Law Group, served as chair of New Jersey Alliance for Action’s White Paper Committee responsible for drafting “A Vision for the Future of the Garden State: Critical Issues for the Candidates for Governor.” Click here to read the full paper.

A TRADITION OF LEGAL EXCELLENCE SINCE 1938

Timothy E. Corriston, a member of Connell Foley LLP’s Executive Committee and co-chair of the Environmental Law Group, has been elected firm Managing Partner. Corriston, who will assume the role effective January 1, 2022, succeeds Philip F. McGovern Jr., who has served as Managing Partner since 2016. Read more here. Leslie A. Boe of Dysart Taylor in Kansas City, Missouri, has been named president of the University of Missouri-Kansas City (UMKC) Women’s Council, an organization of campus and community members who actively support the education of women graduate students by providing financial assistance and expanded opportunities to enhance and enable their educational experience and careers. Scarlett M. Corso of Franklin & Prokopik, P.C. in Maryland has been awarded the Bar Association of Baltimore City Young Lawyers’ Division (“YLD”) Public Service Award for the 2020-2021 year. This award recognizes a YLD member who has devoted substantial time to public service activities or other community service initiatives. Click here to read more about Corso’s extensive community outreach. Shannon Nessier, a litigation partner at Hanson Bridgett LLP, received DRI’s 2021 Richard H. Krochock Award that recognizes a DRI member who has provided exemplary leadership to the DRI Young Lawyers Committee (YLC) through sponsorship or participation in its programs and activities; provided guidance, support, and service as a mentor to the members of the YLC; and promoted those qualities which enhance the image of the civil defense trial lawyer to the public. Davina Pujari of Hanson Bridgett LLP was elected to Environmental Law Institute Board of Directors effective December 1, 2021. Raffi Zerounian of Hanson Bridgett LLP was appointed as editor-in-chief of the Trademark Reporter. William “Bill” Fish, Jr. of Hinckley Allen in Connecticut received the Champion of Open Government award from the Connecticut Council on Freedom of Information. Donald Myles of Jones, Skelton & Hochuli, PLC (JSH) in Arizona has become a Fellow of the American College of Trial Lawyers (ACTL). Myles is the seventh JSH attorney elected to ACTL, including Stephen Bullington, John Masterson, A. Melvin McDonald, Russell Skelton, Phillip Stanfield, and Past Chair Georgia Staton. Kimberly Page, an associate attorney at Jones, Skelton & Hochuli, PLC (JSH), has been named president of the Arizona Association of Defense Counsel Young Lawyers Division (AADC YLD) 2021-2022 Board of Directors. Page previously served as the AADC YLD vice president and board secretary.


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on the move (Continued)

Larson • King attorney Nicholas A. Rauch has been awarded the 2021 Deb Oberlander Award by the Minnesota Defense Lawyers Association. The award recognizes a lawyer who demonstrates outstanding leadership, professionalism, skills, and advocacy in the practice of law. Tony Novak, a partner with Larson • King, has been elected to serve as president of the Minnesota Defense Lawyers Association for 2021-2022. Murchison & Cumming Managing Partner Dan L. Longo has been recognized as a visionary by the L.A. Times B2B Publishing Division in the Business of Law: Trends, Updates, Visionaries & In-House Counsel Leadership Awards Magazine. Murchison & Cumming’s Los Angeles Senior Associate Anthony D. Ross has been sworn in as president of the Beverly Hills Bar Association (BHBA). His priorities as president include diversity, equity, and inclusion efforts as well as expanding professional development and business opportunities for BHBA members. Click to learn more. J. Cliff McKinney of Quattlebaum, Grooms & Tull PLLC was appointed a member of the Joint Editorial Board for Uniform Real Property Acts of the Uniform Law Commission (ULC). Founded in 1892, the ULC is comprised of state commissions on uniform laws from each state, the District of Columbia, the Commonwealth of Puerto Rico, and the U.S. Virgin Islands. A managing member of the law firm, McKinney concentrates his practice on real estate, land use and business transactions. Rivkin Radler managing partner Evan H. Krinick has been named to a distinguished panel of attorneys statewide who have been asked by the New York State Bar Association (NYSBA) to serve on a newly formed “Task Force on Post-Pandemic Future of the Profession.” Rivkin Radler Partner Tamika Hardy was elected president of the Amistad Black Bar Association. Tracey McIntyre, Rivkin Radler director of legal talent and head of the firm’s Diversity, Development & Inclusion Committee, received a Diversity in Business award from Long Island Business News. Patrick J. Sweeney of Sweeney & Sheehan, P.C. in Philadelphia was named the first vice president of DRI, the leading organization of civil defense attorneys and in-house counsel. Before this, Sweeney served in several leadership positions in DRI, including committee chair (twice), regional director, governance committee, annual meeting steering committee chair, national director, law in-

stitute member, secretary-treasurer, and second vice president. In two years, Sweeney will become DRI president. Caroline Guy of Therrien Couture Joli-Coeur in Quebec, Canada, has been appointed to the International Trademark Association’s (INTA) Harmonization of Trademark Law and Practice Committee. INTA is an international association of trademark owners and professionals dedicated to supporting trademarks and related intellectual property rights to foster consumer confidence, economic growth and innovation. The College of Patent Agents and Trademark Agents (CPATA) has appointed Johanne Muzzo of Therrien Couture Joli-Coeur in Quebec, Canada, an attorney and certified Canadian trademark agent, to the Trademark Agent Board of Examiners for a two-year term. The Board of Examiners assumes responsibility for administering the trademark agent qualifying examinations. The College was recently created by federal legislation to regulate the patent and trademark agent profession in Canada. Jonathan Harwood of Traub Lieberman in Hawthorne, New York, has been named chair of the DRI Professional Liability Committee. Harwood is a longstanding DRI member and previously has served as vice chair, membership chair and seminar chair for the Professional Liability Committee.

New name, same trusted team. USLAW’s official jury consultant and courtroom technology partner, Litigation Insights, has joined with the experienced trial services firm IMS Consulting & Expert Services. While the name is changing, USLAW members and clients will have the same trusted team supporting their jury consulting and courtroom technology needs. For additional details and contact in­ formation, visit IMS online.


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verdicts Carr Allison (Dothan, AL) Pamela Hallford of Carr Allison in Dothan, Alabama, represented a trucking client in a jury trial. The trial took place in Conecuh County (AL) and Hallford obtained a favorable verdict for her client. Flaherty Sensabaugh Bonasso PLLC (Charleston, WV) Defense Verdict Obtained in Cabell County After a three-day in-person jury trial, Amy R. Humphreys and Jason Proctor of Flaherty Sensabaugh Bonasso PLLC obtained a defense verdict on behalf of a hospital in the Circuit Court of Cabell County, West Virginia. Plaintiff alleged that the firm’s client failed to properly maintain their premises which caused plaintiff to fall and suffer personal injuries. On August 26, 2021, the jury returned a verdict finding no negligence, exonerating the hospital. Jones, Skelton & Hochuli, P.C. (Phoenix, AZ) JSH attorneys win appeal nine years after defense verdict in Sloan v. Farmers Insurance Company of Arizona Jones, Skelton & Hochuli attorneys Donald Myles, Lori Voepel, and Ashley Villaverde Halvorson have prevailed in three appeals on behalf of their client, Farmers Insurance Company of Arizona, affirming their 2012 defense verdict in a bad faith case. (Barbara Sloan v. Farmers Insurance Company of Arizona, Farmers Insurance Exchange, and Farmers Group, Inc., Arizona Court of Appeals | July 13, 2021) This case arose in 2009 when plaintiff’s house burned in a fire and she was criminally charged with arson. The insurer paid the claim in full after the charges were dismissed. Plaintiff alleged the insurer acted in bad faith by initially denying the claim and for withholding its cause and origin report and claim file from her while the claim was investigated and privilege issues were judicially resolved. In July 2012, following a 22-day trial and four days of deliberation, the jury issued a verdict in favor of the defense, agreeing the insurer had acted reasonably (click here to read the July 2012 case summary). Plaintiff moved for a new trial, which was denied,

and from which she appealed (Appeal 1). The insurer prevailed on a second appeal (Appeal 2), but the case was remanded for additional findings (click here to read the 2018 case summary). On remand, the trial court agreed with the insurer and affirmed the verdict, and plaintiff appealed (Appeal 3). On July 13, 2021, the Arizona Court of Appeals affirmed both the trial court’s 2019 denial of plaintiff’s motion for a new trial under Ariz. R. Civ. P. 59, and her motion for relief from judgment under Ariz. R. Civ. P. 60(c) (Appeals 1 and 3), thus affirming the defense verdict. Plaintiff moved for reconsideration, which was denied. MehaffyWeber, P.C. (Houston, TX) MehaffyWeber received a complete summary judgment of all claims against their client in a large commercial arbitration. It is rare to get a hearing on a summary judgment from an arbitrator, much less to get one granted. Corey Seel and Warren Wise prepared the motion and arguments, and Trey Sandoval and Stephanie Shoemaker helped review and categorize the massive document productions. In a separate matter, MehaffyWeber lawyers Michele Smith, Trey Sandoval, Diana Shelby and Elizabeth Perez secured a summary judgment exonerating the structural engineering firm of record in a large, multiparty construction defect case involving multiple condominiums in a private retirement community. Other defendants filed motions, but MehaffyWeber was the only defendant to succeed in obtaining this outcome. Traub Lieberman (Hawthorne,NY) Traub Lieberman Partner Stephen Straus Obtains Pre-Answer Dismissal of Complaint in Legal Malpractice Case Plaintiff filed suit against Traub Lieberman’s law firm client (Defendant) for allegedly disclosing confidential personal information about Plaintiff during discovery exchanges in an underlying lawsuit. The Defendant had represented Plaintiff’s adversary in that action, and the disclosure allegedly occurred in court filings during the suit. When the filings came to light, the records were sealed. Plaintiff sought no sanction or other relief against its adversary or Defendant in the underlying suit. Plaintiff instead filed a separate action against Defendant, seeking damages related to the allegedly negligent disclosure of Plaintiff’s personal information. Stephen Straus and the Traub


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Lieberman team moved pre-answer to dismiss the complaint on two grounds. Firstly, Traub Lieberman argued that Plaintiff did not have standing to sue, because Defendant did not represent Plaintiff in the underlying action, and it was not alleged that Defendant committed fraud. Secondly, Traub Lieberman argued that Plaintiff was relegated to seeking redress in the underlying action rather than by way of a planetary action concerning the discovery dispute. The court agreed and dismissed the complaint, holding that Plaintiff had no right of action against Defendant as the law firm did not represent Plaintiff, and no exception to the privity requirement existed under the alleged facts. The court further held that Plaintiff conceded it was pursuing an impermissible plenary action by not disputing Traub Lieberman’s argument that Plaintiff did not seek redress in the underlying action. Wicker Smith O’Hara McCoy & Ford P.A. (Jacksonville, FL) Wicker Smith wins admitted liability tender rejection case The trial was held in September 2021, following a rear-end collision that occurred in February 2018. The plaintiff was a 59year-old male who claimed the accident aggravated unspecified conditions in his neck and caused exacerbation of a preexisting herniation of his L4/5 intervertebral disc to worsen. Because of his claimed injuries, the plaintiff underwent a one-level discectomy and fusion with medical specials totaling approximately $300,000 and had lost wages over $200,000. The trial lasted five (5) days in Alachua County, Florida. At the trial, the plaintiff’s treating physician testified that he would likely require an adjacent-level fusion in the future, and the plaintiff’s counsel presented additional testimony from a life care planner that included the adjacent-level fusion and physical therapy. The defendant’s retained neurologist testified that the plaintiff’s injuries should have resolved with twelve (12) weeks of conservative treatment, and the defense radiologist testified there was no evidence of acute injury. The defendant’s retained biomechanical engineering expert also testified that had the accident caused the herniation, the herniation would have been in the opposite direction of the plaintiff’s herniation. In closing argument, the plaintiff’s counsel requested an award of over $2.1 million, including past and future medicals, lost wages, and pain

and suffering. In opposition, the defendant’s counsel pointed out the inconsistencies with the plaintiff’s injuries and that the majority of the plaintiff’s treating physicians treated him under Letters of Protection, giving them an interest in the outcome of the case. After deliberations, the jury awarded only $15,262.47 in past medicals, less than 1% of what was requested, and declined to award any future medicals, lost wages, or pain and suffering damages. A pre-trial proposal for settlement was served, under which the defendant should be deemed the “prevailing party” thus entitled to fees and costs. The defendant was represented by E. Holland “Holly” Howanitz and Tara S. Floyd.

transactions Rivkin Radler (Uniondale, NY) Rivkin Radler Partner Stella Lellos, Doug Menikheim, counsel to Rivkin Radler, and Associate Samantha Barbere represented Tigre USA, Inc. in a major acquisition. The U.S. subsidiary of a Tigre Group – a Brazil-based multinational company supplying plumbing, HVAC and irrigation products – acquired Dura Plastic Products, Inc. a manufacturer and distributor of molded plastic products for the plumbing, pool and spa markets and its two affiliates on April 8, 2021. The deal closed in only eight weeks, thanks to dedication, diligence and hard work of the team.


SOME THINGS GET BETTER WITH AGE. LIKE THE S-E-A AND USLAW PARTNERSHIP. S-E-A was founded

1970

S-E-A and USLAW begin partnership

2001

2004

USLAW NETWORK was founded

USLAW 20th Anniversary

2020

2021

S-E-A 50th Anniversary

As we celebrate 17 years of collaboration and friendship, we are proud to continue to

make our partnership and communities stronger with the Live Better initiative.

Mental and physical health is of critical importance to personal and professional well-being. To promote wellness within our “community,” S-E-A and USLAW have jointly initiated a new program called, “Live Better” ®

focused toward our members, associates, and our families.


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Diversity, Equity and Inclusion Franklin & Prokopik, P.C., headquartered in Maryland, ranked 16th nationally for firms with 100 or fewer attorneys in Law360’s 2021 Glass Ceiling Report. Of the firm’s more than 65 attorneys, 44% of the associates are female, 36.4% are equity partners and 61.5% are non-equity partners. The methodology behind this year’s rankings (a redesign of the Glass Ceiling Report) shows how the percentage of women across the three attorney levels compares with the field of new hires. The National Law Journal (NLJ) has ranked Wicker Smith O’Hara McCoy & Ford P.A., in the top 20 for the second consecutive year of the 2021 NLJ 500 Women in Law Scorecard, a list ranking the country’s largest law firms on how many female lawyers are employed firm-wide. The firm ranks 19th this year out of 350 law firms. In the 2021 report, Wicker Smith recorded 42% of its attorneys are women. The Women’s Scorecard is produced as part of the annual NLJ 500 firm head count report. Barclay Damon held its annual Diversity, Equity & Inclusion State of the Firm meeting in October and launched a powerful new video to bring the firm’s commitment to DEI to life. Cassandra Rich of Barclay Damon receives DEI Award Barclay Damon ‘s annual Diversity Equity & Inclusion Award was presented to Cassandra C. Rich, special counsel by Mark T. Whitford, partner, at the DEI State of the Firm event in October. The award is given annually to someone who demonstrates ongoing effort to support Firm DEI initiatives and who embodies a spirit of welcoming and inclusion to others at the firm. Despite joining the firm right before the COVID-19 shut down, Rich was recognized for assisting in organizing efforts like a Lunch-n-Learn on Redlining Discrimination, a collection effort for the Bivona Child Advocacy Center, and a local park clean-up for the Rochester office Community Day. Hanson Bridgett receives Top Performer award for DEI efforts Hanson Bridgett LLP has been named a Top Performer by the Leadership Council on Legal Diversity (LCLD), recognizing those law firms and corporations showing a strong commitment to building more diverse organizations and a more inclusive legal profession. The Top Performer award recognizes those organizations in the top 20 percent for participation in LCLD programs and activities. “We are honored to receive this award from such a prestigious organization committed to furthering DEI in the corporate world and legal profession,” said Jennifer Martinez, the firms’s chief diversity, equity and inclusion officer. “We know there is much more to be done, however. My mandate as the firm’s first CDEIO is to ensure we are not just paying lip service to diversity, equity, and inclusion issues once per decade. We want to ensure we take real action within our firm, the legal profession at large, and our communities.” Earlier this year, LCLD’s Board of Directors announced a requirement for members to create a public pledge detailing actions they will take to advance diverse talent. Hanson Bridgett created its pledge in advance of the June 2022 deadline, which outlines not only the firm’s commitment to advancing diverse talent, but also the personal investment of the firm’s managing partner to this work. Hanson Bridgett’s pledge can be read here. The Top Performer award comes on the heels of several national awards and recognition for the firm’s diversity, equity and inclusion (DEI) efforts. The start of 2021 was part of an intentional strategy to expand the firm’s initiatives, starting with some internal changes. The firm appointed Kristina Lawson as the firm’s first female managing partner who named the firm’s first Chief Diversity, Equity and Inclusion Officer, Jennifer Martinez, followed by the appointment of the firm’s first Director of Pro Bono and Social Impact, Samir Abdelnour. Recently, the firm received Minority Corporate Counsel Association’s 2021 George B. Vashon Award as well as achieving Mansfield 4.0 Certification Plus Status. Earlier this year, Lawson was selected for Corporate Counsel’s 2021 Women, Influence & Power in Law Awards; the firm was named as a Best Law Firm for Women for the 12th year; and the firm received two honors at the ELEVATE awards.


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Barclay Damon LLP attorneys recognized for pro bono work Gabby Figueroa, counsel, and Barclay Damon were selected by the Volunteer Lawyers Project of CNY as 2021 Pro Bono Champion award winners. Figueroa was honored with the Pro Bono Coordinator Award for her work coordinating pro bono services, and Barclay Damon was honored with the Family Court Clinic Award for its commitment to the Volunteer Lawyers Project of CNY’s Family Court Clinic. The awards were presented at the second annual Cheers for a Cause Fundraiser held on Thursday, September 30, 2021. David Cost, partner, served as co-chair of the Justice for All Campaign for The Legal Aid Society of Northeastern New York. The campaign this year focused on mitigating the ongoing impact of COVID-19 on many families and ensuring that all area families had access to legal services to protect their rights. Barclay Damon was again a lead supporter of the campaign which kicked off on September 30, 2021. Barclay Damon’s Mike Ferdman, partner, Megan Bahas, of counsel, and Sarah O’Brien, associate, were recognized by Chief Judge Wolford and named to the inaugural U.S. District Court for the Western New York Pro Bono Honor Roll for providing pro bono representation in the district from January 1, 2020 to June 30, 2021. Since April 1, 2020, the court has appointed pro bono counsel to eligible pro se litigants in over 30 civil cases.

Meghan Litecky Named Pro Bono Champion for Veteran Work Dysart Taylor director Meghan Litecky was honored as a Pro Bono Champion by the Kansas City Metropolitan Bar Association (KCMBA) and Legal Aid of Western Missouri as part of the Project Pro Bono initiative. Litecky was honored for her pro bono work with the Kansas City Metropolitan Bar Foundation’s (KCMBF) Military Matters program. The November issue of KC Counselor, the official publication of the KCMBA, highlighted Litecky’s work with the Kansas City Metropolitan Bar Foundation’s (KCMBF) Military Matters program, which stretches back to the initiative’s inception in 2016. Judge Willingham, who selected Litecky as the November Pro Bono Champion, described Litecky’s work. He stated, “…the attorney went above and beyond in using alternative strategies to realize the final outcome. It takes ingenuity and creative thinking to find a way to achieve the favored result.” Litecky focuses her practice on a variety of civil litigation and personal injury matters, ranging from advising trucking companies in wrongful death actions to defending small businesses in professional liability claims.

Baird Holm LLP recognized for free civil legal aid In September, Baird Holm was honored to receive the 2021 Legal Aid of Nebraska Law Firm Equal Justice Award. Legal Aid of Nebraska’s mission is to help achieve greater and more equal justice by providing free civil legal aid to low-income Nebraskans.

Alabama State Bar honors Carr Allison The attorneys in Carr Allison’s Birmingham, Alabama, office have been honored by the Alabama State Bar with the 2021 Law Firm Award for their pro bono work with the Birmingham Volunteer Lawyers Program. Carr Allison attorneys have been assisting clients with a variety of legal issues including, evictions, collections, landlord tenant issues and credit card fraud. Carr Allison attorneys continue to step up and show support to those community members who are in need of free legal assistance.

Hanson Bridgett secures pro bono victory Hanson Bridgett attorneys secured a pro bono victory for a client seeking a permanent domestic violence restraining order against her former spouse and assisted the client in modifying custody and visitation orders to protect her children.

Five SPMB Attorneys Make Iowa State Bar Association Pro Bono Honor Roll In celebration of October as National Pro Bono Month, the Iowa State Bar Association recognized member attorneys who performed 50+ hours of pro bono work for clients. Simmons Perrine Moyer Bergman PLC attorneys (pictured top left-to-right) Larry Gutz, Matthew Brandes, Jacob Koller, (pictured bottom left-to-right) Michael Neuerburg and Matthew Roth were honored for their volunteer work.


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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 nearly 100 independent, full practice firms 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 pro-

vide USLAW Magazine, compendia of law, as well as an 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 IN EUROPE. 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 1,000 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 • Organized around client expectations • 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. For more information, please contact Roger M. Yaffe, USLAW CEO, at (800) 231-9110 or roger@uslaw.org


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h o m e .f i e l d a d v a n t a g e Edmonton, AB

Edmonton, AB

. .. . .. . . .. . . .. . .. . ... ... . . . . . . . .. . . .. . .. . . . . . .. . . . . . ... ...... . . . . .. . ... .. . .. . . .. . .. . . . .. . .. . .. .... . .. .. . . . .. . . .. . . . . . . . . . .. . .... ... .. . . . . . . . .. . . . . . .. . . . ..... . . . . . ... . . . . . . .. .. . ... .. . . . ........ . . . Calgary, AB

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USLAW

2022

membership roster ALABAMA | BIRMINGHAM Carr Allison Charles F. Carr............................. (251) 626-9340 ccarr@carrallison.com ARIZONA | PHOENIX Jones, Skelton & Hochuli, P.L.C. Phillip H. Stanfield...................... (602) 263-1745 pstanfield@jshfirm.com ARKANSAS | LITTLE ROCK Quattlebaum, Grooms & Tull PLLC John E. Tull, III............................ (501) 379-1705 jtull@qgtlaw.com CALIFORNIA | LOS ANGELES Murchison & Cumming LLP Dan L. Longo............................... (714) 953-2244 dlongo@murchisonlaw.com CALIFORNIA | SAN DIEGO Klinedinst PC John D. Klinedinst....................... (619) 239-8131 jklinedinst@klinedinstlaw.com CALIFORNIA | SAN FRANCISCO Hanson Bridgett LLP Mert A. Howard........................... (415) 995-5033 mhoward@hansonbridgett.com CALIFORNIA | SANTA BARBARA Snyder Burnett Egerer, LLP Barry Clifford Snyder.................. (805) 683-7750 bsnyder@sbelaw.com COLORADO | DENVER Lewis Roca Jessica L. Fuller........................... (303) 628-9527 jfuller@lewisroca.com CONNECTICUT | HARTFORD Hinckley Allen Noble F. Allen.............................. (860) 725-6237 nallen@hinckleyallen.com DELAWARE | WILMINGTON Cooch and Taylor P.A. C. Scott Reese.............................. (302) 984-3811 sreese@coochtaylor.com FLORIDA | CENTRAL FLORIDA Wicker Smith O’Hara McCoy & Ford P.A. Richards H. Ford......................... (407) 843-3939 rford@wickersmith.com FLORIDA | SOUTH FLORIDA Wicker Smith O’Hara McCoy & Ford P.A. Nicholas E. Christin.................... (305) 448-3939 nchristin@wickersmith.com FLORIDA | TALLAHASSEE Carr Allison Christopher Barkas..................... (850) 222-2107 cbarkas@carrallison.com HAWAII | HONOLULU Goodsill Anderson Quinn & Stifel LLP Edmund K. Saffery...................... (808) 547-5736 esaffery@goodsill.com IDAHO | BOISE Duke Evett, PLLC Keely E. Duke.............................. (208) 342-3310 ked@dukeevett.com ILLINOIS | CHICAGO SmithAmundsen LLC Lew R.C. Bricker.......................... (312) 894-3224 lbricker@salawus.com IOWA | CEDAR RAPIDS Simmons Perrine Moyer Bergman PLC Kevin J. Visser.............................. (319) 366-7641 kvisser@spmblaw.com KANSAS/WESTERN MISSOURI |

KANSAS CITY Dysart Taylor Cotter McMonigle & Brumitt, PC Patrick K. McMonigle................. (816) 714-3039 pmcmonigle@dysarttaylor.com KENTUCKY | LOUISVILLE Middleton Reutlinger Elisabeth S. Gray......................... (502) 625-2848 EGray@MiddletonLaw.com

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LOUISIANA | NEW ORLEANS McCranie, Sistrunk, Anzelmo, Hardy McDaniel & Welch LLC Michael R. Sistrunk..................... (504) 846-8338 msistrunk@mcsalaw.com MAINE | PORTLAND Richardson, Whitman, Large & Badger Elizabeth G. Stouder................... (207) 774-7474 estouder@rwlb.com MARYLAND | BALTIMORE Franklin & Prokopik, PC Albert B. Randall, Jr..................... (410) 230-3622 arandall@fandpnet.com MASSACHUSETTS | BOSTON Rubin and Rudman LLP John J. McGivney......................... (617) 330-7000 jmcgivney@rubinrudman.com MINNESOTA | ST. PAUL Larson • King, LLP Mark A. Solheim......................... (651) 312-6503 msolheim@larsonking.com MISSISSIPPI | GULFPORT Carr Allison Douglas Bagwell......................... (228) 864-1060 dbagwell@carrallison.com MISSISSIPPI | RIDGELAND Copeland, Cook, Taylor & Bush, P.A. James R. Moore, Jr....................... (601) 427-1301 jmoore@cctb.com MISSOURI | ST. LOUIS Lashly & Baer, P.C. Stephen L. Beimdiek.................. (314) 436-8303 sbeim@lashlybaer.com MONTANA | GREAT FALLS Davis, Hatley, Haffeman & Tighe, P.C. Maxon R. Davis........................... (406) 761-5243 max.davis@dhhtlaw.com NEBRASKA | OMAHA Baird Holm LLP Jennifer D. Tricker....................... (402) 636-8348 jtricker@bairdholm.com NEVADA | LAS VEGAS Thorndal Armstrong Delk Balkenbush & Eisinger Brian K. Terry.............................. (702) 366-0622 bkt@thorndal.com NEW JERSEY | ROSELAND Connell Foley LLP Kevin R. Gardner......................... (973) 840-2415 kgardner@connellfoley.com NEW MEXICO | ALBUQUERQUE Modrall Sperling Jennifer G. Anderson.................. (505) 848-1809 Jennifer.Anderson@modrall.com NEW YORK | BUFFALO Barclay Damon LLP Peter S. Marlette............................(716) 858-3763 pmarlette@barclaydamon.com NEW YORK | HAWTHORNE Traub Lieberman Stephen D. Straus......................... (914) 586-7005 sstraus@tlsslaw.com NEW YORK | UNIONDALE Rivkin Radler LLP David S. Wilck............................. (516) 357-3347 David.Wilck@rivkin.com NORTH CAROLINA | RALEIGH Poyner Spruill LLP Deborah E. Sperati...................... (252) 972-7095 dsperati@poynerspruill.com NORTH DAKOTA | DICKINSON Ebeltoft . Sickler . Lawyers PLLC Randall N. Sickler....................... (701) 225-5297 rsickler@ndlaw.com OHIO | CLEVELAND Roetzel & Andress Bradley A. Wright........................ (330) 849-6629 bwright@ralaw.com OKLAHOMA | OKLAHOMA CITY Pierce Couch Hendrickson Baysinger & Green, L.L.P. Gerald P. Green........................... (405) 552-5271 jgreen@piercecouch.com OREGON | PORTLAND Williams Kastner Thomas A. Ped............................ (503) 944-6988 tped@williamskastner.com PENNSYLVANIA | PHILADELPHIA Sweeney & Sheehan, P.C. J. Michael Kunsch....................... (215) 963-2481 michael.kunsch@sweeneyfirm.com PENNSYLVANIA | PITTSBURGH Pion, Nerone, Girman, Winslow & Smith, P.C. John T. Pion................................. (412) 281-2288 jpion@pionlaw.com

RHODE ISLAND | PROVIDENCE Adler Pollock & Sheehan P.C. Richard R. Beretta, Jr.................. (401) 427-6228 rberetta@apslaw.com

DENMARK Lund Elmer Sandager Jacob Roesen.............................(+45 33 300 268) jro@les.dk

SOUTH CAROLINA | COLUMBIA Sweeny, Wingate & Barrow, P.A. Mark S. Barrow............................ (803) 256-2233 msb@swblaw.com

ENGLAND Wedlake Bell LLP Richard Isham......................+44(0)20 7395 3000 risham@wedlakebell.com

SOUTH DAKOTA | PIERRE Riter Rogers, LLP Robert C. Riter............................ (605) 224-5825 r.riter@riterlaw.com

ESTONIA • LATVIA • LITHUANIA LEXTAL Tallinn|Riga|Vilnius Lina Siksniute Vaitiekuniene.....................(+370) 5 210 27 33 lina@lextal.lt

TENNESSEE | MEMPHIS Martin, Tate, Morrow & Marston, P.C. Lee L. Piovarcy............................ (901) 522-9000 lpiovarcy@martintate.com

FINLAND Lexia Attorneys Ltd. Markus Myhrberg..................... +358 10 4244200 markus.myhrberg@lexia.fi

TEXAS | DALLAS Fee, Smith, Sharp & Vitullo, L.L.P. Michael P. Sharp.......................... (972) 980-3255 msharp@feesmith.com

FRANCE Delsol Avocats Emmanuel Kaeppelin........... +33(0)4 72 10 20 30 ekaeppelin@delsolavocats.com

TEXAS | HOUSTON MehaffyWeber Barbara J. Barron........................ (713) 655-1200 BarbaraBarron@mehaffyweber.com

GERMANY Buse Jasper Hagenberg..................... +49 30 327942 0 hagenberg@buse.de

UTAH | SALT LAKE CITY Strong & Hanni, PC Stephen J. Trayner...................... (801) 323-2011 strayner@strongandhanni.com

GREECE Corina Fassouli-Grafanaki & Associates Law Firm Korina Fassouli Grafanaki...........................(+30) 210-3628512 korina.grafanaki@lawofmf.gr

WASHINGTON | SEATTLE Williams Kastner Rodney L. Umberger.................. (206) 628-2421 rumberger@williamskastner.com WEST VIRGINIA | CHARLESTON Flaherty Sensabaugh Bonasso PLLC Michael Bonasso......................... (304) 347-4259 mbonasso@flahertylegal.com WISCONSIN | MILWAUKEE Laffey, Leitner & Goode LLC Jack Laffey................................... (414) 312-7105 jlaffey@llgmke.com WYOMING | CASPER Williams, Porter, Day and Neville PC Scott E. Ortiz............................... (307) 265-0700 sortiz@wpdn.net

USLAW INTERNATIONAL ARGENTINA | BUENOS AIRES Barreiro, Olivas, De Luca, Jaca & Nicastro Nicolás Jaca Otaño................ (54 11) 4814-1746 njaca@bodlegal.com BRAZIL | SÃO PAULO Mundie e Advogados Rodolpho Protasio................. (55 11) 3040-2923 rofp@mundie.com CANADA | ALBERTA

CALGARY & EDMONTON Parlee McLaws LLP Connor Glynn............................. (780) 423-8639 cglynn@parlee.com CANADA | ONTARIO | OTTAWA Kelly Santini Lisa Langevin................. (613) 238-6321 ext 276 llangevin@kellysantini.com CANADA | QUEBEC | BROSSARD Therrien Couture JoliCoeur Douglas W. Clarke....................... (450) 462-8555 douglas.clarke@groupetcj.ca CHINA | SHANGHAI Duan&Duan George Wang.............................. 8621 6219 1103 george@duanduan.com MEXICO | MEXICO CITY EC Rubio René Mauricio Alva................ +52 55 5251 5023 ralva@ecrubio.com

TELFA AUSTRIA PHH Rechtsanwälte Rainer Kaspar............................. +43 1 714 24 40 kaspar@phh.at BELGIUM CEW & Partners Charles Price............................(+32 2) 534 20 20 Charles.price@cew-law.be CZECH REPUBLIC Vyskocil, Kroslak & spol., Advocates and Patent Attorneys Jiri Spousta......................... (00 420) 224 819 133 spousta@akvk.cz

HUNGARY Bihary Balassa & Partners Attorneys at Law Phone.......................................... +36 1 391 44 91 IRELAND Kane Tuohy Solicitors Sarah Reynolds..............................(+353) 1 6722233 sreynolds@kanetuohy.ie ITALY LEGALITAX Studio Legale e Tributario Alessandro Polettini.............. +39 049 877 58 11 alessandro.polettini@legalitax.it LUXEMBOURG Tabery & Wauthier Véronique Wauthier...............(00352) 251 51 51 avocats@tabery.eu MALTA EMD Dr. Italo Ellul.............................. +356 2123 3005 iellul@emd.com.mt NETHERLANDS Dirkzwager Legal & Tax Karen A. Verkerk....................... +31 26 365 55 57 Verkerk@dirkzwager.nl NORWAY Advokatfirmaet Sverdrup DA Tom Eivind Haug.......................... +47 90653609 haug@sverdruplaw.no POLAND GWW Aldona Leszczyńska -Mikulska.............................. +48 22 212 00 00 warszawa@gww.pl PORTUGAL Carvalho, Matias & Associados Antonio Alfaia de Carvalho..........................(351) 21 8855440 acarvalho@cmasa.pt SLOVAKIA Alianciaadvokátov Gerta Sámelová Flassiková............................. +421 2 57101313 flassikova@aliancia.sk SPAIN Adarve Abogados SLP Juan José García.........................+34 91 591 30 60 Juanjose.garcia@adarve.com SWEDEN Wesslau Söderqvist Advokatbyrå Phone.......................................... +46 8 407 88 00 SWITZERLAND Meyerlustenberger Lachenal Nadine von Büren-Maier............+41 22 737 10 00 nadine.vonburen-maier@mll-legal.com TURKEY Cukur & Yilmaz Phone...................................... +90 232 465 07 07


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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. USLAW Client Resources provide information regarding each resource that is available. We encour-

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you and your company. For additional information, contact Roger M. Yaffe, USLAW CEO, at roger@uslaw.org or (800) 231-9110, ext. 1.

USLAW is continually seeking to ensure that your legal

outcomes 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 USLAW client resources products or services listed as well as ideas for the future that would benefit you and your colleagues.

VIRTUAL OFFERINGS

USLAW has many ways to help members virtually connect with their clients. From USLAW Panel Counsel Virtual Meetings to exclusive social and networking opportunities to small virtual roundtable events, industry leaders and legal decision-makers have direct access to attorneys across the NETWORK to support their various legal needs. Moving forward, we will promote a hybrid virtual approach to our future live events.

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It’s no secret – USLAW can host a great event. We are very proud of the timely industry-leading interactive roundtable discussions at our semi-annual client conferences, forums and client exchanges. Reaching from national to more localized offerings, USLAW member attorneys and the clients they serve meet throughout the year at USLAW-hosted events and at many legal industry conferences. For 2022, we are re-focusing on in-person meetings where and when possible and will continue to be creative with virtual event offerings. CLE accreditation is provided for most USLAW educational offerings.

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USLAW

WINTER 2021/2022 USLAW MAGAZINE 5 3

LAWMOBILE

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. 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. In light of COVID-19, consider hosting a virtual LawMobile event for your team.

COMPENDIA OF LAW

USLAW regularly produces new and updates existing Compendia providing multi-state resources that permit users to easily access state common and statutory law. Compendia are easily sourced on a state-by-state basis and are developed by the member firms of USLAW. Some of the current compendia 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. We’ve also added several COVID-19-specific compendia that focus on civil immunity, general liability, force majeure and more. Visit the Client Resources section of uslaw.org for the complete USLAW compendium library.

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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.

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USLAW MAGAZINE

USLAW Magazine is an in-depth publication produced and designed to address legal and business issues facing commercial and corporate clients. Recent topics have covered cybersecurity & data privacy, COVID-19 impacts, 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, allocating risk by contract and much more.

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WINTER 2021/2022 USLAW MAGAZINE U S L A W

USLAW CONNECTIVITY

In today’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, and collaborate with others connected to USLAW. Please check out USLAW on Twitter @uslawnetwork and our LinkedIn group page.

USLAW MEMBERSHIP DIRECTORY

Each year USLAW produces a comprehensive membership directory. 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. If you would like to be added to the distribution list, mailto:jennifer@uslaw.org.

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 hand-selected, groups 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.

PRACTICE GROUPS

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 and Financial Services, Commercial Law, Complex Tort and Product Liability, Construction Law, Data Privacy and Security, eDiscovery, Employment and Labor Law, Energy/Environmental, Healthcare Law, Insurance Law, International Business and 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? Not a problem. USLAW firms cover the gamut of the legal profession and we will help you find a firm that has significant experience in your area of need.


2

www.uslaw.org U S L A W

American Legal Records offers many services to assist and simplify the discovery process. ALR is an industry leader in record procurement and duplication services with a personalized customer service staff for all your needs. Our management represents over 200 years of knowledge in our field assisting the legal and insurance communities.

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WINTER 2021/2022 USLAW MAGAZINE 5 6

2 0 22 USLAW Corporate P artn e r s HHH HH USLAW PREMIER

THANK YOU PARTNERS

PARTNER

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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 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.


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2 0 22 USLAW Corporate P artn e r s

American Legal Records OFFICIAL RECORD RETRIEVAL PARTNER

www.americanlegalrecords.com 1974 Sproul Road, 4th Floor Broomall, PA 19008 Phone: (888) 519-8565 Michael Funk Director of Business Development Phone: (610) 848-4302 Email: mfunk@americanlegalrecords.com Jeff Bygrave Account Executive Phone: (610) 848-4350 Email: jbygrave@americanlegalrecords.com Kelly McCann Director of Operations Phone: (610) 848-4303 Email: kmccann@americanlegalrecords.com American Legal Records is the fastest-growing record retrieval company in the country. The pandemic has greatly impacted the record retrieval industry and made it increasingly difficult to obtain medical records in a timely fashion. We have streamlined this process to eliminate the monotonous, never-ending time your team/panel counsel is spending on obtaining records. Our team has over 200 years of experience and can provide nationwide coverage for all your record retrieval needs. Our highly trained staff is experienced in all civil rules of procedures and familiar with all state-mandated statutes regarding copying fees. We are approved by more than 80% of the carriers and TPAs.

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www.teamarcadia.com 5613 DTC Parkway, Suite 610 Greenwood Village, CO 80111 Phone: (800) 354-4098 Rachel D. Grant, CSSC Structured Settlement Consultant 12894 Parkridge Drive, Suite 100 Shelby Township, MI 48315 Phone: 586.932.2111 Email: rgrant@teamarcadia.com Your USLAW structured settlements consultants are:

Brian Annandono, CSSC • Cleveland, OH Cassie Barkett, Esq. • Tulsa, OK Len Blonder • Los Angeles, CA Rachel Grant, CSSC • Detroit, MI Nicole Mayer • Chicago, IL Richard Regna, CSSC • Denver, CO Iliana Valtchinova • Pittsburgh, PA Arcadia Settlements Group is honored to be USLAW’s exclusive partner for structured settlement services. Arcadia Settlements Group (Arcadia) and Structured Financial Associates (SFA) have merged to create the largest provider of structured settlement services, combining the strength of best-inclass consultants, innovative products and services, and deep industry expertise. Our consultants help resolve conflicts, reduce litigation expenses, and create long-term financial security for injured people through our settlement consulting services. Arcadia Consultants also assist in the establishment and funding of other settlement tools, including Special Needs Trusts and Medicare Set-Aside Arrangements, and are strategically partnered to provide innovative market-based, tax-efficient income solutions for injured plaintiffs. Arcadia is recognized as the first structured settlement firm with more than 45 years in business. Our consultants have used our skill and knowledge, innovative products and unparalleled caring service to help settle more than 325,000 claims involving structured settlement funding of more than $40 billion and have positively impacted hundreds of thousands of lives by providing security and closure.


USLAW

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2 0 22 USLAW Corporate P artn e r s

IMS Consulting

OFFICIAL JURY CONSULTANT AND COURTROOM TECHNOLOGY PARTNER

www.expertservices.com 4400 Bayou Boulevard, Suite 4 Pensacola, FL 32503 Phone: (877) 838-8464 Twitter: @ExpertServices Merrie Jo Pitera, Ph.D. Senior Director of Jury Consulting Phone: 913.339.6468 Email: mjpitera@expertservices.com Adam Bloomberg Client Services Advisor Phone: 214.395.7584 Email: abloomberg@expertservices.com Jill Leibold, Ph.D. Director of Jury Research Phone: 310.809.8651 Email: jleibold@expertservices.com Christina Marinakis, J.D., Psy.D. Director of Jury Research Phone: 443.742.6130 Email: cmarinakis@expertservices.com Your goal is to provide high-caliber advocacy for your client—IMS Consulting helps you achieve that goal by providing jury consulting and courtroom technology services. Everything we do at IMS is anchored in our commitment to help you gain the best position to win. Our 2021 union with Litigation Insights joined complementary strengths and common ideals to elevate your visual communications and jury research. For 30 years, the most influential attorneys and firms have relied on IMS for the most comprehensive trial services. Our unique perspectives and proprietary methods have been developed over more than 20,000 cases and 2,000 completed trials. With strategic locations in major U.S. markets, the IMS team is primed to support your in-person and remote litigation proceedings. Gain peace of mind with our experienced trial professionals. Let’s work together: expertservices. com.

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Doug Marshall President Email: dmarshall@mi-pi.com Adam M. Kabarec Vice President Email: akabarec@mi-pi.com

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Thom Kramer Director of Internet Investigations Email: tkramer@mi-pi.com Amie Norton Business Development Manager Email: anorton@mi-pi.com Valentina Benjamin SIU Manager Email: vbenjamin@mi-pi.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

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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.


We test the speculation.

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We investigate the maybes.

We explain away the what ifs.

So you know.

At S-E-A, we test a multitude of products. From automotive components to candles to electronics devices, children’s toys, and, yeah, even medical devices too. But, when there is an alleged issue, we use forensic knowledge developed over five decades to dig past the speculation and precisely reveal the facts. Then we explain those facts in the simplest of terms, often presenting them visually via our Imaging Sciences team. Doing this at the highest level is what sets us apart. Congratulations to our partner, USLAW NETWORK, on 20 successful years!

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