HB Litigation News

Category: Class Actions

  • James Beck on the Drug & Device Law Blog: Something Both Sides Should Agree On (re Class Actions)

    James Beck on the Drug & Device Law Blog: Something Both Sides Should Agree On (re Class Actions)

    By James M. Beck

    Senior Life Sciences
    Policy Analyst
    Reed Smith LLP

    Drug & Device Law Blog: Something Both Sides Should Agree On (re Class Actions)

    We’ll be very clear – as we have before:  We don’t like most class actions.  Indeed, if given our druthers, we would abolish Rule 23, as it applies to class actions for damages, altogether.  But that’s not in the offing anytime soon.  Today, we offer a class action decision that we think both sides, us on the defense and those on the plaintiffs side, can agree on, excluding only those responsible for the problem.

    In Pearson v. Target Corp., 968 F.3d 827 (7th Cir. 2020), the court came up with one possible solution to the class action “objector problem.”

    What’s that?

    Well, once a class action settles (as most do), all too often “objectors” come out of the woodwork.  While these objectors purport to assert the interests of the class, usually, all they want is money to make them go away.  Or, as described in Pearson:

    We address here a recurring problem in class-action litigation known colloquially as “objector blackmail.”  The scenario is familiar to class-action litigators on both offense and defense.  A plaintiff class and a defendant submit a proposed settlement for approval by the district court.  A few class members object to the settlement but the court approves it. . . .  The objectors then file appeals.  As it turns out, though, they are willing to abandon their appeals in return for sizable side payments that do not benefit the plaintiff class: a figurative “blackmail” by selfish holdouts threatening to disrupt collective action unless they are paid off.

    …

    Read more at the Drug & Device Defense Law Blog.

    Safeguarding Against Financial Exploitation

    An on-demand CLE-eligible webinar Safeguarding Against Financial Exploitation   America’s senior population is growing. Nearly one in five U.S. residents will be 65 or older in 2030. Which means the average age of U.S. investors is climbing too. With that comes the risk that they will be exploited by people with access – or gain access through nefarious methods – to their investment portfolio. Seniors and vulnerable persons lose billions of dollars each year. Remarkably, 90% of the people to take advantage of senior investors are members of their own family. Attorneys who represent senior clients need to know the signs of vulnerability, red flags that their clients are being exploited, what laws apply, and rules lawyers must follow in these matters.   Questions our speakers answer: What is senior / vulnerable investor exploitation?   Who is protected by state and federal laws?   How prevalent is senior financial exploitation? What do the numbers tell us?  What is the pace of financial abuse SAR filings by securities firms?  What are the most popular scams?   What is diminished capacity?  What are the red flags indicating possible exploitation?  What are the laws, rules, and regulations governing law firms?  What are some best practices for law firms?  How can firms best protect their senior clients?   On Demand CLE Webinar What You Get PowerPoint and supplemental materials. Complete recording for later review. Answers to your questions via email. Invitation to contact speakers. 1.5 CLE credits (for licensed attorneys). CLE assistance.* *Subject to state bar rules. For licensed attorneys.  Register Meet the Speakers Joseph Calabrese Bressler, Amery & Ross, P.C. A 1991 Graduate of St. John’s University Law School, Mr. Calabrese brings 30 years of practice and 18 years of Securities Litigation/Regulatory experience to his role as principal in the New York office of  Bressler, Amery & Ross’s Financial Institutions Group. He began his career as a Wall Street litigator as an associate general counsel for Citigroup’s Smith Barney and […]

    Lien Resolution: Government & Private Plans Get Aggressive (Against Attorneys)

    Includes Nearly 75 minutes of insights from experienced professionals. CLE credit: 1+ (subject to bar rules). For CLE questions: CLE@LitigationConference.com The complete Power Point presentation. Continued access to the complete recording for later use. Answers to your questions via email to the presenters or write to HB and we will be sure to contact the speakers. What can you do to settle personal injury suits cleanly and avoid costly litigation and penalties? What recent cases can inform you about protecting your settlements and, as attorneys, yourselves, from post-settlement federal lawsuits? How can your firm set itself up to meet government expectations? What role might experts play in navigating these pitfalls? Medicare Advantage (42 USC § 1395w-22) Federal Medical Care Recovery Act (FMCRA) (42 USC § 2651) Armed Forces Act (10 USC §1095) Veterans’ Benefits (38 USC §1729) Third-Party Collection Rules (32 CFR 537.24; 38 CFR 17.101, etc.) Set-Asides under the Medicare Secondary Payer Act (42 USC § 1395y(b)(2)] On Demand Registration Lien Resolution Government & Private Plans Get Aggressive (Against Attorneys!) On Demand | Recorded September 2020 It is increasingly common these days. Personal injury attorneys settle a case, only to find themselves sued by a U.S. Attorney for failing to reimburse Medicare for conditional payments as required by the Medicare Secondary Payer Act. In some cases the attorney may be required to pay fines in addition to the reimbursements and interest, a costly proposition. Are you up to speed on issues surrounding Medicare Advantage, TRICARE, veterans’ claims, and Medicare set-asides? Join nationally recognized healthcare lien and resolution expert Franklin P. Solomon and go-to lien resolution provider Brett Newman as they offer a practical, in-depth CLE presentation. Franklin P. Solomon, Esq. Attorney & Founder, Solomon Law Firm  A graduate of Rutgers University School of Law at Camden, Franklin Solomon is based in Cherry Hill, NJ, with a practice focused on evaluation, litigation and resolution of healthcare “liens” and reimbursement claims. Mr. Solomon represents personal injury victims and their attorneys […]

    Telepsychiatry: Mitigating the Risks

    REGISTER Registration Includes Nearly 90 minutes of insights from experienced professionals. CLE credit: 1+ (subject to bar rules). For CLE questions: CLE@LitigationConference.com The complete Power Point presentation. Continued access to the complete recording for later use. Answers to your questions via email to the presenters or write to HB and we will be sure to contact the speakers. Understand the risks associated with telepsychiatry and how to manage them.  Telemedicine has emerged as an important solution for healthcare in general and psychiatric medicine specifically during the current global pandemic. Remote access for sub-practices including addiction counseling have been commonly used. Our panel of psychiatric professionals who have served as expert witnesses and attorneys who counsel and represent physicians have prepared a 90-minute session to share insights with attorneys, physicians, healthcare providers, risk professionals, and more. Agenda Examining procedures and best practices that exist for ensuring confidentiality in a telemedicine practice How do you draft a telepsychiatric consent form? What is the emerging standard of care for telemedicine? Will the standard of care for telemedicine become a national standard? (Should it?) Review the case law addressing telemedicine or telepsychiatry How do the HIPAA regulations and HITECH privacy laws impact telemedicine? How have the HIPAA regulations and HITECH privacy laws been relaxed during the pandemic? Will the relaxed HIPAA and HITECH regulations impacting telemedicine continue past the pandemic? Which technical platforms are preferred? Which ones to avoid? Panelists Mark Levy, M.D., Medical Director at fpamed David Kan, M.D., UCSF Psychiatry Department and the California Society for Substance Abuse Medicine Ayesha Ashai, M.D., associated with fpamed Stephen M. Fatum, J.D., Partner, Barnes & Thornburg LLP Angela W. Russell, J.D., Partner, Wilson Elser Moskowitz Edelman & Dicker LLP Meet our physician and attorney panelists. Mark Levy MD Medical Director fpamed Dr. Levy is a graduate of Columbia College (A.B. 1967) and the Columbia University College of Physicians and Surgeons (M.D. 1971) in New York. He is a Physician […]

    The Commercial Drone Industry: Privacy, Security, Threats, and Mitigation of Risk

    HB presents a CLE-eligible webinar Now on-demand at the West LegalEdcenter THE COMMERCIAL DRONE INDUSTRY Privacy, Security, Threats, and Mitigation of Risk Drones have become an increasingly valuable tool for businesses of all types and sizes. Drones are already being used in many applications, but more will certainly arise as the technology advances. This means that certain risks, like cyber threats, will also continue to present themselves. Protecting the transmission and storage of data collected through drones is critical. Unfortunately, security usually comes as an afterthought. The drone industry is part of the aviation industry, which, based on its knowledge, keeps safety as a number one concern. Part of that safety is having proper protection for your systems, including security as a fundamental design principle. Take this webinar to gain insights on the topics listed below, and shared by an attorney who practices on the cutting-edge of this evolving technology. Topics: Defining drones. Current and future applications. FAA Modernization and Reform Act of 2012. FAA Part 107 Regulations and waivers. Resources, e.g. the FAA Drone Zone and LAANC Portal. Penalties for violations. Privacy implications. Drones as weapons. Vulnerability to cyber attacks. Take it now! What you get: 1+ CLE credits (subject to bar rules). Insights from an experienced professional who specializes in this area of the law. The complete PowerPoint presentation. Continued access to the complete recording for later use. Answers to your questions. Fee: No additional charge to subscribers to the West LegalEdcenter. Non-subscribers may take the course for $170. Meet the Speaker Kathryn Rattigan Robinson & Cole LLP Kathryn Rattigan is a member of the firm’s Business Litigation Group and Data Privacy + Cybersecurity Team. She advises clients on data privacy and security, cybersecurity, and compliance with related state and federal laws. She assists clients in assessing risks related to technology and software contracts, as well as with compliance-related issues with outsourcing and […]

    The Intersection of Privacy and Antitrust Webinar Now Available On-Demand on the West LegalEdcenter

    Available as part of your subscription to The Thomson Reuters West LegalEdcenter®. Don’t subscribe to the West LegalEdcenter? This webinar is still available directly from HB. Take it now! Questions for speakers Questions@LitigationConferences.com CLE questions CLE@LitigationConferences.com Check out the MoginRubin blog for more insights on antitrust and privacy law. What attorneys and companies need to know about the increasing interplay between these critical areas of the law.  Highly publicized cases and investigations in the U.S. and Europe of big technology, e-commerce, and social media companies demonstrate how anti-competition laws are being used to scrutinize and challenge not only how these corporations conduct themselves in the marketplace, but the very core of their colossal success: the mass collection and utilization of user data. Are the privacy and antitrust worlds beginning to cross over? Or do they simply run parallel while addressing entirely different types of conduct? Whatever the answer, data is the raw material that drives the likes of Google, Facebook, Apple and Amazon, so how it is handled is a critical question when counseling clients on mergers and acquisitions. Moderator Daniel J.  Mogin | Managing Partner, MoginRubin LLP Speakers Jennifer M. Oliver, CIPP/US | Partner, MoginRubin LLP Thomas N. Dahdouh | Director, Western Region, Federal Trade Commission Franklin M. Rubinstein | Partner, Wilson Sonsini Goodrich & Rosati Randi W. Singer, CIPP/US, CIPT | Partner, Weil, Gotshal & Manges Contributor Dina Srinivasan | Independent Researcher & Author of The Antitrust Case Against Facebook Dina was unable to present but we thank her for her content contributions.  Agenda Who should regulate privacy violations in the U.S.? Which antitrust issues implicate privacy concerns? What role does machine learning play on the competitive landscape? What is big data really? How is it different from “data”? What are the elements of effective merger reviews? What are the appropriate remedies? What are “notice-and-choice” versus “harms-based” approaches? Plus answers to your questions. Send them to Questions@LitigationConferences.com.

  • Progress of Roundup Settlement in Question, Verus Reports

    Progress of Roundup Settlement in Question, Verus Reports

    By Kim Lavin

    Manager of Research Services
    Verus LLC
    klavin@verusllc.com
    609-466-0427

    Progress of Roundup Settlement in Question

    Judge Would Likely Not Have Agreed to a Stay Had He Known About the Contingency

    On August 27, plaintiffs’ counsel in the multi-district litigation involving Monsanto and its widely used weed killer Roundup, advised the court that parent company Bayer AG appeared to be going back on the settlement agreement announced in June. At that time, the company had agreed to settle about 75% of the 125,000 claims filed by plaintiffs alleging that their non-Hodgkin’s lymphoma was linked to Roundup use; the settlement was for an estimated $10 billion.

    At the hearing, Judge Vince Chhabria advised that he had received confidential letters from a number of plaintiffs’ counsel with cases pending in the MDL who were concerned that Bayer AG was going back on the settlement, noting that the company had terminated settlement term sheets and refused to execute master service agreements that would finalize their settlements; Bayer conceded that there were currently no final agreements.

    Bayer did advise Judge Chhabria that about 667 of the cases currently pending in the MDL had been resolved, a figure that the judge noted was only a fraction of the 4,000 currently filed.  The judge also pointed to Bayer’s June 24 announcement of the settlement, stating that he had taken “all of that to mean the MDL is settled.”  He indicated that he would likely not have agreed to a 60-day stay of the litigation had he known that the larger settlement was contingent on his approval of a separate class action settlement for $1.25 billion, designed to resolve any future Roundup cases.  The judge then advised the parties that although he would not lift the current stay, he would not extend it, expressing concerns that it was being used by the parties to manipulate the settlement talks.

    Read more at VerusLLC.com.

    Safeguarding Against Financial Exploitation

    An on-demand CLE-eligible webinar Safeguarding Against Financial Exploitation   America’s senior population is growing. Nearly one in five U.S. residents will be 65 or older in 2030. Which means the average age of U.S. investors is climbing too. With that comes the risk that they will be exploited by people with access – or gain access through nefarious methods – to their investment portfolio. Seniors and vulnerable persons lose billions of dollars each year. Remarkably, 90% of the people to take advantage of senior investors are members of their own family. Attorneys who represent senior clients need to know the signs of vulnerability, red flags that their clients are being exploited, what laws apply, and rules lawyers must follow in these matters.   Questions our speakers answer: What is senior / vulnerable investor exploitation?   Who is protected by state and federal laws?   How prevalent is senior financial exploitation? What do the numbers tell us?  What is the pace of financial abuse SAR filings by securities firms?  What are the most popular scams?   What is diminished capacity?  What are the red flags indicating possible exploitation?  What are the laws, rules, and regulations governing law firms?  What are some best practices for law firms?  How can firms best protect their senior clients?   On Demand CLE Webinar What You Get PowerPoint and supplemental materials. Complete recording for later review. Answers to your questions via email. Invitation to contact speakers. 1.5 CLE credits (for licensed attorneys). CLE assistance.* *Subject to state bar rules. For licensed attorneys.  Register Meet the Speakers Joseph Calabrese Bressler, Amery & Ross, P.C. A 1991 Graduate of St. John’s University Law School, Mr. Calabrese brings 30 years of practice and 18 years of Securities Litigation/Regulatory experience to his role as principal in the New York office of  Bressler, Amery & Ross’s Financial Institutions Group. He began his career as a Wall Street litigator as an associate general counsel for Citigroup’s Smith Barney and […]

    Lien Resolution: Government & Private Plans Get Aggressive (Against Attorneys)

    Includes Nearly 75 minutes of insights from experienced professionals. CLE credit: 1+ (subject to bar rules). For CLE questions: CLE@LitigationConference.com The complete Power Point presentation. Continued access to the complete recording for later use. Answers to your questions via email to the presenters or write to HB and we will be sure to contact the speakers. What can you do to settle personal injury suits cleanly and avoid costly litigation and penalties? What recent cases can inform you about protecting your settlements and, as attorneys, yourselves, from post-settlement federal lawsuits? How can your firm set itself up to meet government expectations? What role might experts play in navigating these pitfalls? Medicare Advantage (42 USC § 1395w-22) Federal Medical Care Recovery Act (FMCRA) (42 USC § 2651) Armed Forces Act (10 USC §1095) Veterans’ Benefits (38 USC §1729) Third-Party Collection Rules (32 CFR 537.24; 38 CFR 17.101, etc.) Set-Asides under the Medicare Secondary Payer Act (42 USC § 1395y(b)(2)] On Demand Registration Lien Resolution Government & Private Plans Get Aggressive (Against Attorneys!) On Demand | Recorded September 2020 It is increasingly common these days. Personal injury attorneys settle a case, only to find themselves sued by a U.S. Attorney for failing to reimburse Medicare for conditional payments as required by the Medicare Secondary Payer Act. In some cases the attorney may be required to pay fines in addition to the reimbursements and interest, a costly proposition. Are you up to speed on issues surrounding Medicare Advantage, TRICARE, veterans’ claims, and Medicare set-asides? Join nationally recognized healthcare lien and resolution expert Franklin P. Solomon and go-to lien resolution provider Brett Newman as they offer a practical, in-depth CLE presentation. Franklin P. Solomon, Esq. Attorney & Founder, Solomon Law Firm  A graduate of Rutgers University School of Law at Camden, Franklin Solomon is based in Cherry Hill, NJ, with a practice focused on evaluation, litigation and resolution of healthcare “liens” and reimbursement claims. Mr. Solomon represents personal injury victims and their attorneys […]

    Telepsychiatry: Mitigating the Risks

    REGISTER Registration Includes Nearly 90 minutes of insights from experienced professionals. CLE credit: 1+ (subject to bar rules). For CLE questions: CLE@LitigationConference.com The complete Power Point presentation. Continued access to the complete recording for later use. Answers to your questions via email to the presenters or write to HB and we will be sure to contact the speakers. Understand the risks associated with telepsychiatry and how to manage them.  Telemedicine has emerged as an important solution for healthcare in general and psychiatric medicine specifically during the current global pandemic. Remote access for sub-practices including addiction counseling have been commonly used. Our panel of psychiatric professionals who have served as expert witnesses and attorneys who counsel and represent physicians have prepared a 90-minute session to share insights with attorneys, physicians, healthcare providers, risk professionals, and more. Agenda Examining procedures and best practices that exist for ensuring confidentiality in a telemedicine practice How do you draft a telepsychiatric consent form? What is the emerging standard of care for telemedicine? Will the standard of care for telemedicine become a national standard? (Should it?) Review the case law addressing telemedicine or telepsychiatry How do the HIPAA regulations and HITECH privacy laws impact telemedicine? How have the HIPAA regulations and HITECH privacy laws been relaxed during the pandemic? Will the relaxed HIPAA and HITECH regulations impacting telemedicine continue past the pandemic? Which technical platforms are preferred? Which ones to avoid? Panelists Mark Levy, M.D., Medical Director at fpamed David Kan, M.D., UCSF Psychiatry Department and the California Society for Substance Abuse Medicine Ayesha Ashai, M.D., associated with fpamed Stephen M. Fatum, J.D., Partner, Barnes & Thornburg LLP Angela W. Russell, J.D., Partner, Wilson Elser Moskowitz Edelman & Dicker LLP Meet our physician and attorney panelists. Mark Levy MD Medical Director fpamed Dr. Levy is a graduate of Columbia College (A.B. 1967) and the Columbia University College of Physicians and Surgeons (M.D. 1971) in New York. He is a Physician […]

    The Commercial Drone Industry: Privacy, Security, Threats, and Mitigation of Risk

    HB presents a CLE-eligible webinar Now on-demand at the West LegalEdcenter THE COMMERCIAL DRONE INDUSTRY Privacy, Security, Threats, and Mitigation of Risk Drones have become an increasingly valuable tool for businesses of all types and sizes. Drones are already being used in many applications, but more will certainly arise as the technology advances. This means that certain risks, like cyber threats, will also continue to present themselves. Protecting the transmission and storage of data collected through drones is critical. Unfortunately, security usually comes as an afterthought. The drone industry is part of the aviation industry, which, based on its knowledge, keeps safety as a number one concern. Part of that safety is having proper protection for your systems, including security as a fundamental design principle. Take this webinar to gain insights on the topics listed below, and shared by an attorney who practices on the cutting-edge of this evolving technology. Topics: Defining drones. Current and future applications. FAA Modernization and Reform Act of 2012. FAA Part 107 Regulations and waivers. Resources, e.g. the FAA Drone Zone and LAANC Portal. Penalties for violations. Privacy implications. Drones as weapons. Vulnerability to cyber attacks. Take it now! What you get: 1+ CLE credits (subject to bar rules). Insights from an experienced professional who specializes in this area of the law. The complete PowerPoint presentation. Continued access to the complete recording for later use. Answers to your questions. Fee: No additional charge to subscribers to the West LegalEdcenter. Non-subscribers may take the course for $170. Meet the Speaker Kathryn Rattigan Robinson & Cole LLP Kathryn Rattigan is a member of the firm’s Business Litigation Group and Data Privacy + Cybersecurity Team. She advises clients on data privacy and security, cybersecurity, and compliance with related state and federal laws. She assists clients in assessing risks related to technology and software contracts, as well as with compliance-related issues with outsourcing and […]

    The Intersection of Privacy and Antitrust Webinar Now Available On-Demand on the West LegalEdcenter

    Available as part of your subscription to The Thomson Reuters West LegalEdcenter®. Don’t subscribe to the West LegalEdcenter? This webinar is still available directly from HB. Take it now! Questions for speakers Questions@LitigationConferences.com CLE questions CLE@LitigationConferences.com Check out the MoginRubin blog for more insights on antitrust and privacy law. What attorneys and companies need to know about the increasing interplay between these critical areas of the law.  Highly publicized cases and investigations in the U.S. and Europe of big technology, e-commerce, and social media companies demonstrate how anti-competition laws are being used to scrutinize and challenge not only how these corporations conduct themselves in the marketplace, but the very core of their colossal success: the mass collection and utilization of user data. Are the privacy and antitrust worlds beginning to cross over? Or do they simply run parallel while addressing entirely different types of conduct? Whatever the answer, data is the raw material that drives the likes of Google, Facebook, Apple and Amazon, so how it is handled is a critical question when counseling clients on mergers and acquisitions. Moderator Daniel J.  Mogin | Managing Partner, MoginRubin LLP Speakers Jennifer M. Oliver, CIPP/US | Partner, MoginRubin LLP Thomas N. Dahdouh | Director, Western Region, Federal Trade Commission Franklin M. Rubinstein | Partner, Wilson Sonsini Goodrich & Rosati Randi W. Singer, CIPP/US, CIPT | Partner, Weil, Gotshal & Manges Contributor Dina Srinivasan | Independent Researcher & Author of The Antitrust Case Against Facebook Dina was unable to present but we thank her for her content contributions.  Agenda Who should regulate privacy violations in the U.S.? Which antitrust issues implicate privacy concerns? What role does machine learning play on the competitive landscape? What is big data really? How is it different from “data”? What are the elements of effective merger reviews? What are the appropriate remedies? What are “notice-and-choice” versus “harms-based” approaches? Plus answers to your questions. Send them to Questions@LitigationConferences.com.

  • NJ Judge Overstepped in Striking Talc Plaintiff Experts, Verus Reports

    NJ Judge Overstepped in Striking Talc Plaintiff Experts, Verus Reports

    By Kim Lavin

    Manager of Research Services
    Verus LLC
    klavin@verusllc.com
    609-466-0427

    Judge Abused Discretion in Striking Expert Evidence, NJ Appellate Court Finds

    Reverses 2016 Summary Judgment in Ovarian Cancer Cases

    On August 5, a three judge panel from the New Jersey state appeals court reversed a 2016 summary judgment granted in favor of defendants, talc manufacturer Johnson & Johnson and talc miner Imerys Talc America in cases brought by two women who allege J&J’s talc products caused their ovarian cancer.

    In its opinion, the panel ruled that Atlantic County Superior Court Judge Nelson C. Johnson abused his discretion by serving as the fact finder in deciding the credibility of the plaintiffs’ experts’ opinions instead of merely assessing whether the doctors’ opinions were based on sound scientific methodology. The trial judge acknowledged that the experts, Dr. Graham Colditz and Dr. Daniel Cramer, were qualified but opined that their scientific studies and evidence were narrow and shallow, showing a preference for cohort studies and their larger sample sizes over the case studies relied on by the experts.  In overturning the ruling by the trial court and discussing the studies cited by Colditz and Cramer, the appeals court stated that those studies satisfied the criteria outlined in the Federal Judicial Center’s Reference Manual on Scientific Evidence and also noted that size and the types of study are not the sole determinants of reliability.

    As a result of the plaintiffs’ experts’ testimony being reinstated, a dispute over a material fact exists in the matter and the case will proceed.

    The two cases, brought by plaintiffs Brandi Carl and Diana Balderrama, were the first two to be tried from the group of 100 lawsuits included in New Jersey’s multi-county litigation.

    Safeguarding Against Financial Exploitation

    An on-demand CLE-eligible webinar Safeguarding Against Financial Exploitation   America’s senior population is growing. Nearly one in five U.S. residents will be 65 or older in 2030. Which means the average age of U.S. investors is climbing too. With that comes the risk that they will be exploited by people with access – or gain access through nefarious methods – to their investment portfolio. Seniors and vulnerable persons lose billions of dollars each year. Remarkably, 90% of the people to take advantage of senior investors are members of their own family. Attorneys who represent senior clients need to know the signs of vulnerability, red flags that their clients are being exploited, what laws apply, and rules lawyers must follow in these matters.   Questions our speakers answer: What is senior / vulnerable investor exploitation?   Who is protected by state and federal laws?   How prevalent is senior financial exploitation? What do the numbers tell us?  What is the pace of financial abuse SAR filings by securities firms?  What are the most popular scams?   What is diminished capacity?  What are the red flags indicating possible exploitation?  What are the laws, rules, and regulations governing law firms?  What are some best practices for law firms?  How can firms best protect their senior clients?   On Demand CLE Webinar What You Get PowerPoint and supplemental materials. Complete recording for later review. Answers to your questions via email. Invitation to contact speakers. 1.5 CLE credits (for licensed attorneys). CLE assistance.* *Subject to state bar rules. For licensed attorneys.  Register Meet the Speakers Joseph Calabrese Bressler, Amery & Ross, P.C. A 1991 Graduate of St. John’s University Law School, Mr. Calabrese brings 30 years of practice and 18 years of Securities Litigation/Regulatory experience to his role as principal in the New York office of  Bressler, Amery & Ross’s Financial Institutions Group. He began his career as a Wall Street litigator as an associate general counsel for Citigroup’s Smith Barney and […]

    Lien Resolution: Government & Private Plans Get Aggressive (Against Attorneys)

    Includes Nearly 75 minutes of insights from experienced professionals. CLE credit: 1+ (subject to bar rules). For CLE questions: CLE@LitigationConference.com The complete Power Point presentation. Continued access to the complete recording for later use. Answers to your questions via email to the presenters or write to HB and we will be sure to contact the speakers. What can you do to settle personal injury suits cleanly and avoid costly litigation and penalties? What recent cases can inform you about protecting your settlements and, as attorneys, yourselves, from post-settlement federal lawsuits? How can your firm set itself up to meet government expectations? What role might experts play in navigating these pitfalls? Medicare Advantage (42 USC § 1395w-22) Federal Medical Care Recovery Act (FMCRA) (42 USC § 2651) Armed Forces Act (10 USC §1095) Veterans’ Benefits (38 USC §1729) Third-Party Collection Rules (32 CFR 537.24; 38 CFR 17.101, etc.) Set-Asides under the Medicare Secondary Payer Act (42 USC § 1395y(b)(2)] On Demand Registration Lien Resolution Government & Private Plans Get Aggressive (Against Attorneys!) On Demand | Recorded September 2020 It is increasingly common these days. Personal injury attorneys settle a case, only to find themselves sued by a U.S. Attorney for failing to reimburse Medicare for conditional payments as required by the Medicare Secondary Payer Act. In some cases the attorney may be required to pay fines in addition to the reimbursements and interest, a costly proposition. Are you up to speed on issues surrounding Medicare Advantage, TRICARE, veterans’ claims, and Medicare set-asides? Join nationally recognized healthcare lien and resolution expert Franklin P. Solomon and go-to lien resolution provider Brett Newman as they offer a practical, in-depth CLE presentation. Franklin P. Solomon, Esq. Attorney & Founder, Solomon Law Firm  A graduate of Rutgers University School of Law at Camden, Franklin Solomon is based in Cherry Hill, NJ, with a practice focused on evaluation, litigation and resolution of healthcare “liens” and reimbursement claims. Mr. Solomon represents personal injury victims and their attorneys […]

    Telepsychiatry: Mitigating the Risks

    REGISTER Registration Includes Nearly 90 minutes of insights from experienced professionals. CLE credit: 1+ (subject to bar rules). For CLE questions: CLE@LitigationConference.com The complete Power Point presentation. Continued access to the complete recording for later use. Answers to your questions via email to the presenters or write to HB and we will be sure to contact the speakers. Understand the risks associated with telepsychiatry and how to manage them.  Telemedicine has emerged as an important solution for healthcare in general and psychiatric medicine specifically during the current global pandemic. Remote access for sub-practices including addiction counseling have been commonly used. Our panel of psychiatric professionals who have served as expert witnesses and attorneys who counsel and represent physicians have prepared a 90-minute session to share insights with attorneys, physicians, healthcare providers, risk professionals, and more. Agenda Examining procedures and best practices that exist for ensuring confidentiality in a telemedicine practice How do you draft a telepsychiatric consent form? What is the emerging standard of care for telemedicine? Will the standard of care for telemedicine become a national standard? (Should it?) Review the case law addressing telemedicine or telepsychiatry How do the HIPAA regulations and HITECH privacy laws impact telemedicine? How have the HIPAA regulations and HITECH privacy laws been relaxed during the pandemic? Will the relaxed HIPAA and HITECH regulations impacting telemedicine continue past the pandemic? Which technical platforms are preferred? Which ones to avoid? Panelists Mark Levy, M.D., Medical Director at fpamed David Kan, M.D., UCSF Psychiatry Department and the California Society for Substance Abuse Medicine Ayesha Ashai, M.D., associated with fpamed Stephen M. Fatum, J.D., Partner, Barnes & Thornburg LLP Angela W. Russell, J.D., Partner, Wilson Elser Moskowitz Edelman & Dicker LLP Meet our physician and attorney panelists. Mark Levy MD Medical Director fpamed Dr. Levy is a graduate of Columbia College (A.B. 1967) and the Columbia University College of Physicians and Surgeons (M.D. 1971) in New York. He is a Physician […]

    The Commercial Drone Industry: Privacy, Security, Threats, and Mitigation of Risk

    HB presents a CLE-eligible webinar Now on-demand at the West LegalEdcenter THE COMMERCIAL DRONE INDUSTRY Privacy, Security, Threats, and Mitigation of Risk Drones have become an increasingly valuable tool for businesses of all types and sizes. Drones are already being used in many applications, but more will certainly arise as the technology advances. This means that certain risks, like cyber threats, will also continue to present themselves. Protecting the transmission and storage of data collected through drones is critical. Unfortunately, security usually comes as an afterthought. The drone industry is part of the aviation industry, which, based on its knowledge, keeps safety as a number one concern. Part of that safety is having proper protection for your systems, including security as a fundamental design principle. Take this webinar to gain insights on the topics listed below, and shared by an attorney who practices on the cutting-edge of this evolving technology. Topics: Defining drones. Current and future applications. FAA Modernization and Reform Act of 2012. FAA Part 107 Regulations and waivers. Resources, e.g. the FAA Drone Zone and LAANC Portal. Penalties for violations. Privacy implications. Drones as weapons. Vulnerability to cyber attacks. Take it now! What you get: 1+ CLE credits (subject to bar rules). Insights from an experienced professional who specializes in this area of the law. The complete PowerPoint presentation. Continued access to the complete recording for later use. Answers to your questions. Fee: No additional charge to subscribers to the West LegalEdcenter. Non-subscribers may take the course for $170. Meet the Speaker Kathryn Rattigan Robinson & Cole LLP Kathryn Rattigan is a member of the firm’s Business Litigation Group and Data Privacy + Cybersecurity Team. She advises clients on data privacy and security, cybersecurity, and compliance with related state and federal laws. She assists clients in assessing risks related to technology and software contracts, as well as with compliance-related issues with outsourcing and […]

    The Intersection of Privacy and Antitrust Webinar Now Available On-Demand on the West LegalEdcenter

    Available as part of your subscription to The Thomson Reuters West LegalEdcenter®. Don’t subscribe to the West LegalEdcenter? This webinar is still available directly from HB. Take it now! Questions for speakers Questions@LitigationConferences.com CLE questions CLE@LitigationConferences.com Check out the MoginRubin blog for more insights on antitrust and privacy law. What attorneys and companies need to know about the increasing interplay between these critical areas of the law.  Highly publicized cases and investigations in the U.S. and Europe of big technology, e-commerce, and social media companies demonstrate how anti-competition laws are being used to scrutinize and challenge not only how these corporations conduct themselves in the marketplace, but the very core of their colossal success: the mass collection and utilization of user data. Are the privacy and antitrust worlds beginning to cross over? Or do they simply run parallel while addressing entirely different types of conduct? Whatever the answer, data is the raw material that drives the likes of Google, Facebook, Apple and Amazon, so how it is handled is a critical question when counseling clients on mergers and acquisitions. Moderator Daniel J.  Mogin | Managing Partner, MoginRubin LLP Speakers Jennifer M. Oliver, CIPP/US | Partner, MoginRubin LLP Thomas N. Dahdouh | Director, Western Region, Federal Trade Commission Franklin M. Rubinstein | Partner, Wilson Sonsini Goodrich & Rosati Randi W. Singer, CIPP/US, CIPT | Partner, Weil, Gotshal & Manges Contributor Dina Srinivasan | Independent Researcher & Author of The Antitrust Case Against Facebook Dina was unable to present but we thank her for her content contributions.  Agenda Who should regulate privacy violations in the U.S.? Which antitrust issues implicate privacy concerns? What role does machine learning play on the competitive landscape? What is big data really? How is it different from “data”? What are the elements of effective merger reviews? What are the appropriate remedies? What are “notice-and-choice” versus “harms-based” approaches? Plus answers to your questions. Send them to Questions@LitigationConferences.com.

  • Microsoft Sued Over Data Sharing in Class Action

    Microsoft Sued Over Data Sharing in Class Action

    Microsoft Sued Over Data Sharing in Class Action

    Consumers, including individuals and companies, filed a class action complaint  against Microsoft in U.S. District Court for the Northern District of California, claiming the company shared consumer data without consent to subcontractors and third parties, including Facebook, despite policies that stated otherwise. 

    The plaintiffs accused Microsoft of “misrepresenting its privacy and security practices, violating federal and state law, and illegally sharing and using its business-class Microsoft Office 365 and Microsoft Exchange customers’ data.” 

    Read more from Law Street Media: https://lawstreetmedia.com/tech/microsoft-sued-over-data-sharing-in-class-action/

  • Facial Recognition Update July 2020

    Facial Recognition Update July 2020

    Facial Recognition Technology — Emerging After Decades of Development — Draws Lawsuits and Proposed Bans 

    We sometimes forget that not all of the technical wizards who transformed our world were young “geniuses” jacked up on Starbucks, their shirttails hanging out in the ping-pong section of their open concept offices. Woody Bledsoe was born 99 years ago. As a young son of a sharecropper he demonstrated exceptional mathematical capabilities. Early in his career he had a dream: A machine that could think like a human, converse like one, and even recognize faces. This was as far back as the 1950s. This mathematician and computer scientist would go on to teach for decades at the University of Austin where he worked to advance automated reasoning and artificial intelligence.

    But what was his role in the development of the technology exactly? Did he perform work for a CIA front? And why, in his old age and suffering from the cruelty of ALS that would ultimately kill him in 1995, did he ask his son to set fire to a stack of old papers? Take a look at “The Secret History of Facial Recognition” written by Shaun Raviv for Wired Magazine, which explores why, among other things, “the record of [Blesdoe’s] role all but vanished.” If there isn’t a movie script in the works there probably will be soon.  

    Today facial recognition is used in such innocent and handy ways as pointing out your friends in a photograph on Facebook to infinitely more serious and controversial applications as identifying people who may or may not be of interest to law enforcement.   

    We’re in what should be an expected phase with something so disruptive and, let’s face it, lucrative. That’s the phase where lawyers and lawmakers dive in to grapple with how to square the disruption with the laws and norms of society. Facebook has been on the blunt end of this recently, as has the company Clearview AI and even the New York Department of Education, which uses facial recognition programs in his schools. Civil rights groups have been increasingly critical of law enforcement use of facial recognition software, as the technology has proven to be inaccurate at times, especially among ethnic groups, women and young people. 

    Tom Hagy
    Managing Director

    FacebookSettlesClass Action for $550 million 

    Facebook faces considerable legal challenges on many fronts and on multiple continents. It recently agreed to put at least one challenge behind it by paying $550 million to settle a class-action lawsuit over its use of facial recognition technology in Illinois, home of the much-heralded 2008 Illinois Biometric Information Privacy Act. This is widely considered to be a major victory for those who have repeatedly raised questions about what they say are the social media company’s questionable data-mining practices. The suit argued that Facebook’s “Tag Suggestions” feature, which allows users to “tag” other uses in their photos using a face-matching software, therefore allowing Facebook to harvest facial data from millions of users, violates privacy rights. Facebook said the settlement as it was in the best interest of the community and its shareholders. Plaintiff attorney Jay Edelson, whose firm represented the Facebook users, told the New York Times, “From people who are passionate about gun rights to those who care about women’s reproductive issues, the right to participate in society anonymously is something we cannot afford to lose.” The Times piece referenced an Illinois Supreme Court ruling which upheld consumers’ right to sue companies for collecting biometric data (fingerprints, iris scans) without informing consumers about the intended use of the data. That was in a case filed against Six Flags Entertainment Corp. For collecting a teenager’s fingerprints when he purchased a season pass at a Six Flags park. Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186. 

    More from the Illinois Supreme Court, New York Times, Consumer Reports, and Chicago Tribune: 

    Clearview AI Facial Recognition Company Faces Another Lawsuit 

    Clearview AI, a controversial facial recognition app that is used by U.S. law enforcement to identify suspects and other people, is facing a lawsuit, also under the Illinois Biometric Information Privacy Act. The action was filed in Cook County Superior Court by the ACLU and others which seeks class-action status and $5 million in damages for what it calls “willful, reckless or negligent violations of biometrics laws.” The plaintiffs are fighting Clearview’s collection, storage and use of biometric information without written consent. “Clearview has amassed a database of more than 3 billion photographs that it scraped from sources including Instagram, Twitter, YouTube, Facebook, Venmo and millions of other websites,” the plaintiffs charge. “Users can take a picture of a stranger on the street, upload it to Clearview’s tool and instantly see photos of that person on various social media platforms and websites, along with the person’s name, address and other identifying information.” The Chicago Police Department reportedly paid nearly $50,000 for a two-year contract to use the facial recognition software. Joining the national and Illinois ACLU organizations, are the Chicago Alliance Against Sexual Exploitation, the Sex Workers Outreach Project Chicago, the Illinois State Public Interest Research Group, Inc., and Mujeres Latinas en Acción.  

    Morefrom the ACLU and CNET:  

    Facial Recognition Lawsuit Targets NY Schools Over Student Privacy 

     A lawsuit against the New York State Education Department is looking to dismantle a $3 million facial recognition system in schools, citing student privacy concerns and the technology’s issues with racial and gender bias. The Lockport School District is one of the first US public school systems to use the technology on students and staff. They began using the technology in January of this year. The lawsuit, filed by the New York Civil Liberties Union on behalf of Lockport parents, argues that the use of facial recognition technology violates the state’s privacy protections under New York’s Education Law. The NYCLU is seeking to have the technology removed from schools. The state originally granted the use of funds for the facial recognition software to the Lockport School District because they claimed that the technology would protect student privacy.  

    More from CNET and EdWeek: 

    Federal Legislators Want to Address Privacy, Wrongful Arrest Concerns 

    Meanwhile, a bicameral proposal from the Senate and House seeks to bring a halt to law enforcement’s use of facial recognition not only to protect privacy but, as they said, to prevent physical harm to people, especially people of color, who are wrongfully identified as criminal suspects.  

    On June 25, 2020, Senator Edward J. Markey (D-Mass.), along with Senator Jeff Merkley (D-Ore.), Congresswoman Pramila Jayapal (WA-07) and Congresswoman Ayanna Pressley (MA-07) announced they would introduce a ban on governmental use of biometric technology, including facial recognition tools. “The Facial Recognition and Biometric Technology Moratorium Act responds to reports that federal and local law enforcement entities have engaged with facial recognition companies and follows recent pledges by leading technology companies to pause their sale of facial recognition tools to law enforcement,” according to the senators’ statement.  

    “A growing body of research points to systematic inaccuracy and bias issues in biometric technologies, which pose disproportionate risks to non-white individuals,” the senators said.

    “A recent report by the National Institute of Standards and Technology on facial recognition tools found that Black, Brown, and Asian individuals were up to 100 times more likely to be misidentified than white male faces.  Yesterday, the American Civil Liberties Union (ACLU) amplified the story of Robert Williams, a Black man from the Detroit area who was wrongfully arrested after facial recognition technology misidentified him as the man who was seen allegedly committing a crime on a store’s surveillance camera feed.”    

    “Facial recognition technology doesn’t just pose a grave threat to our privacy, it physically endangers Black Americans and other minority populations in our country,” said Senator Markey. 

    “As we work to dismantle the systematic racism that permeates every part of our society, we can’t ignore the harms that these technologies present. I’ve spent years pushing back against the proliferation of facial recognition surveillance systems because the implications for our civil liberties are chilling and the disproportionate burden on communities of color is unacceptable. In this moment, the only responsible thing to do is to prohibit government and law enforcement from using these surveillance mechanisms.”      

    “At a time when Americans are demanding that we address systemic racism in law enforcement, the use of facial recognition technology is a step in the wrong direction,” Markey said.  

    Congresswoman Jayapal opposes retail sales of facial recognition products. “For years, I have called on companies like Amazon to stop selling facial recognition technology that has not only been invasive, inaccurate and unregulated but has also been unapologetically weaponized by law enforcement against Black people across this country for far too long. Introduced on the same day that the House is set to pass the George Floyd Justice in Policing Act, our legislation will not only protect civil liberties but it will aggressively fight back against racial injustice by stopping federal entities from using facial recognition tools and stripping support for state and local law enforcement departments that use biometric technology.”  

    The Justice in Policing Act, would, among other things, disallow uniformed officers from using dashcams and bodycams that utilize facial recognition software. It also specifies that police departments using federal grants to buy or rent bodycams must adopt policies on the use of facial recognition on the footage from the devices, including securing a judge’s approval and only deploying it in cases of “imminent threats or serious crimes.” However, many civil rights groups, including the ACLU, feel that these provisions don’t go nearly far enough to protect people from possible discrimination and wrongful arrest, which they describe as “incredibly biased technology.” “IBM, Amazon, and Microsoft all said they would halt sales of facial recognition to U.S. police and called on Congress to impose rules on use of the technology,” Wired Magazine reported. 

    Congresswoman Pressley called the technology “fundamentally flawed, systemically biased, and has no place in our society,” adding that “Black and brown people are already over-surveilled and over-policed, and it’s critical that we prevent government agencies from using this faulty technology to surveil communities of color even further.” 

    See articles and copies of the bills from CNET, Wired, NPR, Sen. Markey, and NBC: 

    Chicago-based privacy law expert Debbie Reynolds summed it up this way: “Use of Facial Recognition will cause an unprecedented need for collaboration between law and technologies to preserve and further support the rights of individuals around the world.”

    Propose an Article

    “For years, I have called on companies like Amazon to stop selling facial recognition technology that has not only been invasive, inaccurate and unregulated but has also been unapologetically weaponized by law enforcement against Black people across this country for far too long.” — Rep. Ayanna Pressley (MA-07). Photo by Nicholas Green on Unsplash

    Propose an Article

    “Use of Facial Recognition will cause an unprecedented need for collaboration between law and technologies to preserve and further support the rights of individuals around the world.”

    Debbie Reynolds
    Debbie Reynolds Consulting, LLC
    Founder, CEO, and Chief Data Privacy Officer

  • Cannabis, CBD: Advertising and Drug Test Problems

    Cannabis, CBD: Advertising and Drug Test Problems

    COVID-19 vs Cannabis: Are Closures Legal?

    In the category of “damned if you do; damned if you don’t,” Massachusetts Governor Charlie Baker shut down recreational cannabis shops, citing concerns over the spread of COVID-19. The dispensaries say the shutdown could seriously damage the industry. But, the governor said, the spread of disease will continue to damage the health of his constituents, especially as residents of states where recreational marijuana is illegal, come to Massachusetts to do their cannabis shopping. Citizens of the state may still obtain medical cannabis, as reported by WBUR.

    Too Much TCH: Can CBD Use Cost You Your Job?

    A New York truck driver has sued a CBD company for allegedly making a product, which he says he uses for pain relief, with too much THC, more than the label indicates. A Pennsylvania woman filed a similar case and a Missouri school bus monitor had a similar experience. Another Missourian blames the store where he purchased his CBD, saying he was assured the product contained minimal THC. All claim they were told they could pass drug tests. All failed their test. And all lost their jobs, according to a post on the Huffs & Puffs website.

    “Courtesy of a dearth of strict standards of testing, many companies tend to list lower values of THC on the product label,” writes Huffs & Puffs. “The quantities of THC will never be ‘as high to make you high’ but they may be enough for you to fail a drug test, conducted via not the most of the sophisticated equipment out there.”

    “For entrepreneurs in the cannabis niche, this is a topic of huge concern as the number of such lawsuits are only going to increase as people keep failing drug tests after consuming CBD.

    Not Enough THC: No Golden Ticket

    Californians have proposed a class action against the owners of a CBD-infused-chocolate factory for selling candy with far less CBD and THC than advertised. For consumers these ingredients justified the premium prices they were paying. And yet, as shareholders, executive officers and managers allegedly knew, the levels were below what the labels had them believe, says Law360.

    No Proof of Health Claims

    The FTC has sued Whole Leaf Organics over the company’s claims that their CBD products effectively treat cancer and prevent or reduce COVID-19 risk. The Bureau of Consumer Protection says that there is “no proof that any product will prevent or treat COVID-19 or that any CBD product will treat cancer.” We can only hope.

    The California marketer and founder of Whole Leaf, Marc Ching, agreed to a preliminary order that prohibits him from making those claims. Pending the resolution of a parallel FTC administrative action, the proposed order also bars the defendant from representing that three CBD-based products he sells are effective cancer treatments.

    According to the FTC: Since December 2018, defendant Marc Ching, also doing business as Whole Leaf Organics, has sold Thrive – a tablet consisting primarily of Vitamin C and herbal extracts. But beginning in March 2020, Thrive underwent something of a marketing make-over. The defendant began pitching the product as a way for consumers to ward off coronavirus. His website claimed, “Formulated with potent antiviral herbal extracts, Thrive by Whole Leaf Organics is the perfect way to strengthen your immunity against pathogens like ‘COVID-19,’ the coronavirus.” The defendant also represented that the product is indicated to “combat” a list of ailments, “as well as the coronavirus.” In addition, the defendant claimed Thrive is “formulated with clinically tested and proven ingredients” and that “our time test formulas are proven and deliver results.”

    Photo by Matthew Brodeur on Unsplash

  • Monsanto, Bayer Paying Billions for PCB Cleanups

    Monsanto, Bayer Paying Billions for PCB Cleanups

    Roundup Weed Killer

    Read Baltimore Sun environmental writer Scott Dance’s June 24, 2020, article titled, “A $550M national class-action settlement includes money for cleanup of PCBs in Baltimore waterways.” He offers the Maryland angle on the $550 million class action settlement between Monsanto and 13 government agencies across the U.S., just part of a much larger agreement.

    “The settlement was one of several that Monsanto’s owner, German pharmaceutical company Bayer, announced Wednesday. Bayer said it’s paying up to $10.9 billion to settle current and potential future litigation over Monsanto’s weedkiller Roundup, which has faced numerous lawsuits over claims it causes cancer, and $1.22 billion to settle two further cases, including the class action focused on PCBs.”

    Dance writes that the terms of this settlement are off to Judge Fernando M. Olquin of the Central District of California for his review. Judge Olquin was one of the presenters on multiple panels at the Class Action Law Forum presented by Western Alliance Bank and produced by my team at HB. Kenneth R. Feinberg, also a presenter, is the court-appointed special master in the case.

    The Baltimore Sun piece was one of many that gave the local perspective on this nationwide litigation and settlement in progress, like this one from the San Francisco Chronicle, with a Seattle dateline, and this one from the Washington State Wire quoting the state’s AG, and this one from the Portland Tribune, with a take on the Oregon impact. And law firms, which stand to gain a great deal in attorney fees issued announcements of their part in the deal, like this one from Baron & Budd. It doesn’t appear the leading defense firm, Skadden Arps, issued a separate statement, but joined in the Bayer announcement. It quoted the firm’s John Beisner, “a consultant to Bayer’s Supervisory Board and a mass tort expert,” as saying, “Taking account of various options, I am convinced this plan provides a comprehensive, reasonable solution to the complex, contested issues presented by this litigation.”

    Bayer’s announcement from Leverkusen, Germany, basically said it was the right thing to do, but that it admits to no wrong-doing.

    “Bayer announced today a series of agreements that will substantially resolve major outstanding Monsanto litigation, including U.S. Roundup™ product liability litigation, dicamba drift litigation and PCB water litigation. The main feature is the U.S. Roundup™ resolution that will bring closure to approximately 75% of the current Roundup™ litigation involving approximately 125,000 filed and unfiled claims overall. The resolved claims include all plaintiff law firms leading the Roundup™ federal multi-district litigation (MDL) or the California bellwether cases, and those representing approximately 95% of the cases currently set for trial, and establish key values and parameters to guide the resolution of the remainder of the claims as negotiations advance. The resolution also puts in place a mechanism to resolve potential future claims efficiently. The company will make a payment of $8.8 billion to $9.6 billion to resolve the current Roundup™ litigation, including an allowance expected to cover unresolved claims, and $1.25 billion to support a separate class agreement to address potential future litigation. The Roundup™ class agreement will be subject to approval by Judge Vince Chhabria of the U.S. District Court for the Northern District of California. The resolutions were approved unanimously by Bayer’s Board of Management and Supervisory Board with input from its Special Litigation Committee. The agreements contain no admission of liability or wrongdoing.”

    The company said it can now get on with tackling global challenges, such as the COVID-19 pandemic, and generally “improv[ing] quality of life for a growing and aging population of an estimated 10 billion people by 2050.”

  • PTSD Claims Brought by Facebook’s ‘Graphic Content’ Reviewers Goes to ADR, Putting Civil Action on Pause

    By Tom Hagy

    Facebook can be great fun. How else would I have seen a video of an eight-year-old drummer-girl utterly thrashing Led Zeppelin’s Good Times Bad Times? Or a dog running away with a lit skyrocket as his human friends run, duck and ditch for their lives? Or what your cat looks like in a tuxedo?

    Facebook can also be a source of horror. Some of the most distressful commentary and images you wish you could un-see. And that’s just from my family.

    Imagine your entire job is to monitor Facebook discussions and remove its graphic content. Day in and day out. That’s literally all you did.

    A group of Facebook employees says that was their job, and their exposure to an “unmitigated barrage of horrifying content” and “toxic images” has caused them to suffer “debilitating trauma-related injuries.”

    In September 2018 they filed suit in California Superior Court in San Mateo seeking an order requiring Facebook to implement safety guidelines for content moderators which, they say, the company has admitted are “necessary and appropriate.” They also want the company to fund a medical monitoring program for the diagnosis and treatment of psychological injuries including post-traumatic stress disorder, or PTSD. The plaintiffs quote Chris Harrison, whom they characterize as a Facebook executive in charge of the company’s “global resiliency team” as saying “of course” the company should offer content moderators post-employment counseling.

    The plaintiffs filed the suit as a proposed class action, and relied on state laws including the California Unfair Competition Law alleging Facebook’s conduct was negligent, and negligence forms the basis of a UCL claim.

    Facebook moved for a judgment on the pleadings, saying the facts are insufficient to constitute a community of interest required for class actions and that there is no ascertainable class. The company said the plaintiffs haven’t supported a claim for negligent provision of unsafe equipment or violation of the UCL, either.

    The issue was set for a hearing on Aug. 9 but the parties agreed to take the case to ADR and stay the litigation until Oct. 7. If they don’t come to an agreement by then they will submit a new case schedule to the court (Selena Scola, et al. v. Facebook, Inc., Civil Case No. 18CIV05135, Calif. Super. Ct., San Mateo Co.).

    What Lawyers Should Know

    Coincidentally — and this has nothing whatsoever to do with the Facebook case — in preparing for our Aug. 21 webinar — PTSD in Mass Tort & Multi-Plaintiff Cases — Mark I. Levy, M.D., DLFAPA (who is in no way involved in that case) told me that “a majority of people who experience a traumatic and stressful event do not develop PTSD.” He said that multiple studies revealed that even in the extreme case of rape, 40-50% of victims do not develop PTSD. Of course, the flip side of that is that more than half do.

    People have different levels of resiliency and vulnerability, he said, so what may cause PTSD in one person may not cause it in another. This isn’t to diminish anyone’s traumatic experience. The question is how these experiences impact the individual, not whether their experience was horrible or not, or illegal or not, which are separate questions. “The probability of an event causing PTSD in any particular individual is only partially related to the severity of the stressor,” Dr. Levy said. I asked him if there were degrees of PTSD, or whether someone can have “a touch of PTSD.” Dr. Levy explained that PTSD is a specific diagnosis with specific conditions. In other words, despite how the term may be used in common parlance, you can’t have “a little PTSD,” at least not in the clinical sense of the word.

    In his presentation materials, Dr. Levy gives two examples of bad experiences that resulted in litigation but were found not to cause PTSD. “After a board meeting a secretary ate a left-over pastry contaminated with rat feces. She alleged she had PTSD because she could never work in that office again. Hers was a truly disgusting experience, but it did not cause PTSD,” Dr. Levy said. In another case a woman who endured unwelcome and explicit sexual overtures from her boss were, while clearly offensive and even unlawful, did not result in the woman’s PTSD. Dr. Levy discusses examples where individuals developed PTSD, such as battle experiences, train crashes, and others.

    Here is a summary of the PTSD diagnostic criteria in the Diagnostic and Statistical Manual of Mental Disorders, or DSM-5:

    A. Exposure to actual or threatened death, serious injury, or sexual violence.
    B. Presence of one (or more) intrusive symptoms associated with the traumatic event(s).
    C. Persistent avoidance of stimuli associated with the traumatic event(s), beginning after the traumatic event(s) occurred.
    D. Negative alterations in cognitions and mood associated with the traumatic event(s), beginning or worsening after the traumatic event(s).
    E. Marked alterations in arousal and reactivity associated with the traumatic event(s).
    F. Duration of the disturbance (Criteria B, C, D, and E) is more than 1 month.
    G. Functional Impairment: The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
    H. The disturbance is not attributable to the physiological effects of a substance (e.g., medication, alcohol) or another medical condition.

    In the majority of cases, PTSD is accompanied by other psychiatric diagnoses (co-morbidity): Major Depression and/or Anxiety Disorder and/or Substance Abuse.

    Dr. Levy — who is Medical Director at Forensic Psychiatric Associates Medical Corporation — cautions attorneys and others about the forensic use of DSM-5: “It is important to note that the definition of mental disorder included in DSM-5 was developed to meet the needs of clinicians, public health professionals, and research investigators rather than all of the technical needs of the courts and legal professionals.”

    For attorneys interested in hearing more from Dr. Levy, and his colleague, Sarah A. Hall, PhD., Clinical Psychologist Specializing in Forensic & Neuropsychological Assessments, click the banner below and learn more about the webinar.

  • PTSD in Multi-Plaintiff and Mass Tort Cases | Webinar OnDemand

    [one-fourth-first]

    Price: $47
    When: On-demand
    Where:     Your computer or mobile device
    CLE:     1 hour

    Speakers

    Mark I. Levy MD, DLFAPA
    Medical Director
    Forensic Psychiatric Associates Medical Corporation
    Associate Clinical Professor, Psychiatry
    University of California, San Francisco, School of Medicine
    415.388.8040
    mlevy@fpamed.com 

    Sarah A. Hall, PhD.
    Psychologist for Forensic & Neuropsychological Assessments
    Forensic Psychiatric Associates Medical Corporation
    shall@fpamed.com 

    [/one-fourth-first][three-fourths]

    What tort attorneys need to know about PTSD claims.

    Mass tort claims arise most frequently in man-made and natural disaster catastrophe litigation as well as personal injury, employment, product liability and toxic tort litigation. Frequently, these lawsuits include either primary or secondary allegations of emotional distress. PTSD is one of the most common emotional distress claims alleged within mass tort litigation, as well as allegations of depression and emotional stress (anxiety). 

    Join an experienced psychiatrist and psychologist who will cover the following topics relevant to the forensic psychiatric assessment of emotional damages within mass tort and complex litigation: 

    + Introduction: Defining PTSD. What it is and what it is not.

    + The methodological approach to assessing allegations of emotional distress in mass tort & complex litigation.

    + The importance and the methodology of psychological testing as part of the assessment of emotional distress claims in mass tort litigation.

    + Claimant population screening. Using psychological test instruments to differentiate claimants who require in-depth forensic psychiatric assessment from claimants who do not. 

    + Are all psych tests the same? Types of psychological test instruments we recommend and ones that we do not — and why.  

    + So-called “PTSD Tests.” Do they have a role in forensic psychological assessments?

    + Accuracy and reliability of conclusions derived from psychological test data.

    + Taking a “team approach” to emotional distress claim assessment in mass tort litigation. 

    [/three-fourths]

  • First Class Action Lawsuit Filed on Behalf of Victims of First American Title Company Data Breach — Yahoo!

    “Gibbs Law Group LLP has filed the first nationwide class action lawsuit accusing First American Title Company of failing to properly secure 885 million sensitive customer files, instead choosing to store them in a ‘woefully insecure,’” publicly-accessible system. “First American has turned the American dream of home ownership into a financial security nightmare for its customers,” according to the complaint.

    Specifically, the lawsuit alleges that First American Title Company was negligent, and violated its contracts with customers, in the way it stored their personal information, which included bank account numbers, Social Security numbers, financial and tax records, and photos of their drivers’ licenses. “This grave lapse in security resulted in publicly exposing hundreds of millions of customers’ personal files, leaving them vulnerable to identify theft and other cybercrimes,” the plaintiffs maintain. 

    Read the complete Press Release on Yahoo! here