HB Litigation News

Category: Emerging Litigation & Risk

  • Cybersecurity and Data Privacy Year in Review 2021

    Cybersecurity and Data Privacy Year in Review 2021

    The Authors

    The authors are all attorneys with the Kennedys law firm (kennedyslaw.com). Joshua Mooney (joshua.mooney@kennedyslaw) and Judy Selby (judy.selby@kennedyslaw.com) are partners. Tracey Kline (tracey.kline@kennedyslaw.com) and Alexis Childs (alexis.childs@kennedyslaw.com) are associates. Bridget Mead, associate, and Javier Vijil, senior associate, also contributed to this article.

    Judy Selby is also a member of the Editorial Board of Advisors for the Journal on Emerging Issues in Litigation.

    The Journal on Emerging Issues in Litigation

    Cybersecurity and Data Privacy 2021 in Review

    By Joshua Mooney, Judy Selby, Tracey Kline, and Alexis Childs

    Abstract:

    As the world emerged from lockdown, it should come as no surprise that cybersecurity and data privacy remained dominant topics in the media and legal industry. Some of 2021 was much like 2020—ransomware attacks continued to fill the headlines, and in the aggregate, constituted significant loss paid under cyber insurance policies. OFAC reminded victim companies and incident response firms (and cyber carriers) that it remains unlawful to pay ransom payments to designated organizations. Comprehensive federal legislation addressing cyber defenses and notification requirements never materialized. Yet in 2021, we saw new and significant developments. U.S. law continued its drift toward comprehensive privacy regulation with two new significant pieces of privacy legislation and California’s enforcement of the California Consumer Privacy Act. In the absence of federal legislation, federal agencies either stepped up enforcement actions or signaled that they intend to do so within their realms of governance. Litigation under the Illinois Biometric Information Privacy Act continued its surge while the Illinois high courts rendered two impactful decisions and a circuit court punted to Illinois’s highest court. This review provides a brief synopsis of many events and developments that made the authors’ list.  

    Perhaps one of the most significant developments in U.S. privacy law for 2021 was the enactment of comprehensive data privacy laws in Virginia and Colorado. Both pieces of legislation, which go into effect in 2023, adopt frameworks resembling those in the EU General Data Protection Regulation 2016/679 (GDPR) and the California Consumer Privacy Act (CCPA). Both laws also grant consumers significant rights with respect to their personal data, but neither contains a private right of action. 

    Get the article now!

  • The Impact of Sanctions on Russia on Global Financial Markets with Brad Rustin

    The Impact of Sanctions on Russia on Global Financial Markets with Brad Rustin

    The Impact on Global Financial Systems of U.S. Sanctions on Russia with Brad Rustin

    Brad Rustin on FinTechBut what risks do American corporations and financial institutions face in light of these measures? What difficult reverberations will companies feel across the world? What should global businesses and FinTechs be doing right now to avoid, among other things, violating the restrictions imposed by the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC)? What role will cryptocurrency play in all of this? Also, do institutions whose data are stored in Russia and Ukraine face an additional risk as a parallel (albeit less horrific) battle rages on in cyberspace?

    Listen to my interview with Brad Rustin, a partner with Nelson Mullins Riley & Scarborough LLP and chair of the firm’s Financial Services Regulatory Practice. Brad is a highly regarded FinTech law and industry expert. This will be apparent when you listen. Brad is also on the Editorial Advisory Board of the Journal on Emerging Issues in Litigation. This is a special rapid-release episode given we feel the insights Brad shares are insights business and FinTech’s — and their attorneys — urgently need to hear.

    This podcast is the audio companion to the Journal on Emerging Issues in Litigation, a collaborative project between HB Litigation Conferences and the Fastcase legal research family, which includes Full Court Press, Law Street Media, and Docket Alarm. The podcast itself is a joint effort between HB and our friends at Law Street Media. If you have comments or wish to participate in one our projects, or want to tell me how much  you learned from Brad,  please drop me a note at Editor@LitigationConferences.com.

    Tom Hagy
    Host and Litigation Enthusiast

    P.S. We did not get to discuss Russia’s retaliatory sanctions against President Biden, his son, Hunter, and Hillary Clinton. No word on sanctions against the Biden dogs. Oh! This just in from People magazine: “Hillary Clinton Thanks Russia for ‘Lifetime Achievement Award’ After Country Issues Sanction Against Her.” That’s just good comedy.

    Economic sanctions leveled against Russia, its leaders, and selected oligarchs by the United States and many other countries for its invasion of Ukraine are arguably the most aggressive in history. Their impact on the Russian economy has been severe and immediate, pushing the nation to the brink of economic collapse.

    But, as they must, the gears of global business and finance must keep turning.

  • Social Inflation’s Impact on Jury Verdicts

    Social Inflation’s Impact on Jury Verdicts

    Social Inflation’s Impact on Jury Verdicts in Healthcare Litigation

    Our guests wrote in the Journal on Emerging Issues in Litigation: “These outsize awards are often driven by myriad factors including sympathetic jurors, societal conceptions about income and wealth of corporations, the use of emotion-driven ‘Reptile Theory’ tactics by plaintiff attorneys, the media spotlight on ‘bad apple’ physicians, and numerous other social factors. A new factor that influences elevated jury verdicts is the increasing volume of information—whether true or false—that is exchanged on social media platforms.”

    Podcast on jury verdictsListen to my interview with Hall Booth Smith P.C. attorneys Sandra Cianflone, Samantha Myers, and Lindsay Nishan, each of whom represents members of the healthcare industry, as they discuss what drives large verdict and what attorneys should consider in mitigating the effects of this phenomenon.

    In keeping with tradition, we may have strayed a bit from the topic. One guest’s Aunt Lulu made an appearance. It turns out Covid lockdowns may have produced more enthusiastic jurors. And I added another reason why writing and podcasting, and not the practice of law, was a better career path for me. (Apparently lawyers aren’t supposed to laugh in people’s faces. Noted.)

    This podcast is the audio companion to the Journal on Emerging Issues in Litigation, a collaborative project between HB Litigation Conferences and the Fastcase legal research family, which includes Full Court Press, Law Street Media, and Docket Alarm. The podcast itself is a joint effort between HB and our friends at Law Street Media. If you have comments or wish to participate in one our projects, or want to tell me how much  you learned from Sandie, Sam, Lindsay, or Aunt Lulu,  please drop me a note at Editor@LitigationConferences.com.

    Tom Hagy
    Litigation Enthusiast
    Host of the Emerging Litigation Podcast

    Jurors’ perceptions of big corporations, insurance companies, drug companies, physicians and other healthcare providers is increasingly colored by TV and social media. 

    The same is true for people’s understanding of the practice law or medicine, which may be as wrong as it is immovable. “Social inflation” refers to rising litigation costs and the resulting higher insurance payouts which drive up the cost of insurance. The phrase has taken on new meanings as it is used in the general press. To some it means tort reform rollbacks, litigation funding, and is most often seen in references to so-called “nuclear” jury verdicts, i.e., awards that exceed $10 million.

    What factors contribute to these jury awards?

  • The Shifting Gun Liability Landscape: Plaintiffs Say Companies are Marketing Illegally, Insurers End Up Paying

    The Shifting Gun Liability Landscape: Plaintiffs Say Companies are Marketing Illegally, Insurers End Up Paying

    The Author

    Charlie Kingdollar

    Charlie KingdollarInsurance Industry Expert

    Charlie spent more than four decades with General Reinsurance, three-quarters of which as the company’s Emerging Issues Officer. One colleague described him as “one of the most prescient and gifted industry futurists I have met in my 36 year professional career within the insurance industry. Entertaining and insightful, his ability to digest and communicate complex issues, many before they are readily apparent, is both a gift and a talent.” Charlie is also a member of the Editorial Board of Advisors for the Journal on Emerging Issues in Litigation.

    The Shifting Gun Liability Landscape: Plaintiffs Say Companies are Marketing Illegally, Insurers End Up Paying

    By Charlie Kingdollar

    On Feb. 15, 2022, Remington Arms, manufacturer of the Bushmaster AR15-style rifle agreed to pay $73 million to settle a lawsuit filed by the families of nine of the victims of the Dec. 14, 2012, Sandy Hook Elementary School shooting. The $73 million will be paid by four of Remington’s insurers (and likely their reinsurers).[i]

    Why is this a big deal? Insurers and reinsurers providing liability coverage for gun manufacturers did so believing that federal law protected gun manufacturers from liability arising from shootings under the federal Protection of Lawful Commerce in Arms Act (PLCAA). It seems likely that policy terms and conditions as well as pricing of the risk reflected that perceived liability protection.

    Things have changed. The Connecticut plaintiffs filed their suit under the Connecticut Fair Trade Practices Act. The plaintiffs alleged that the Bushmaster was a combat weapon and that Remington improperly marketed it to civilians – particularly trying to reach young men. In 2019, the Connecticut Supreme Court ruled that the federal PLCAA did have some carve-outs for state laws and subsequently declined Remington’s request to dismiss the lawsuit. It seems a safe bet that the families of other Connecticut gun violence victims will file similar suits over past and/or future incidents.

    Okay, so this is Connecticut. But it seems likely that this lawsuit will be used as a template by plaintiffs in other states that have similar statutes – and many do. This lawsuit and settlement could result in burgeoning litigation against gun manufacturers.

    Presumably, even a single victim shot with a Bushmaster, or any gun that could be argued is a combat weapon, could file a similar suit under a state’s Fair Trade Practices Act.

    Which other guns could be deemed “combat weapons” and therefore unfit for civilian populations? Only time and future litigation will tell. One possible example is the WEE1 Tactical, the manufacturer of the AR-15, which is similar to the Bushmaster, may find itself facing litigation. A look at AR-15-style guns on Wikipedia results in a list of 27 guns by 26 manufacturers – and I doubt this is a comprehensive list.[ii] Would a machine pistol be considered a “combat weapon”? How many other types of firearms might be deemed “combat weapons”?

    WEE1 Tactical has recently begun advertising the JR-15 – a smaller, lighter version of the AR-15 that fires smaller .22 caliber rounds for use by children. WEE1’s website states: “The JR-15 is the first in a line of shooting platforms that will safely help adults introduce children to the shooting sports.”[iii] Given that the plaintiffs in the Sandy hook case stressed the firm was specifically marketing the Bushmaster to young men it will be interesting to see how this marketing strategy will play out in any future similar litigation.

    There’s been another crack in the perceived liability protection afforded to gun manufacturers in the U.S.  Last year the State of New York enacted a law that “would classify the illegal or improper marketing or sale of guns as a nuisance…that supporters said would bolster litigation against gun companies.”[iv]

    Will other states follow? If even a few enact similar statutes, the defense and indemnity costs could be significant to the gun manufacturers and their insurers and reinsurers.

    Bushmaster has settled once before with the families of victims shot by one of its guns. In 2004, the company agreed to pay $2.5 million to settle with the families of victims shot by the D.C. sniper.[v] Not much changed after that settlement. It may be different this time.

    What about other entities in the gun liability chain? If the gun manufacturer can be held libel for marketing a combat weapon to civilians, can wholesalers and retailers also be found liable?  Could courts find that these companies also played a role in putting “combat weapons” into the hands of civilians?  If so, the costs to the Property/Casualty insurance industry will be greater.

    Unfortunately, mass shootings and gun violence are on the rise in the United States. The number of mass shootings (defined as 4 or more people shot – killed or wounded) have increased every year except one from 2014 to 2021. In 2014 there were 269 mass shootings in the U.S.  By 2021, this increased to 691 mass shootings. There have been 2,402 mass shootings in the U.S. in the past five years. And we’ve only mentioned mass shootings incidents.[vi]

    Gun violence generally continues to rise. “Guns were involved in 75% of all homicides and 91% of homicides involving youths between 2018 and 2019 … those new numbers represent a significant and troubling uptick from a decade before.”[vii]

    I suspect insurers and reinsurers providing liability for companies that manufacture and sell guns find themselves as defendants in an increasing number of lawsuits.

    [i] https://www.washingtonpost.com/nation/2022/02/15/remington-sandy-hook-settlement/

    [ii] https://en.wikipedia.org/wiki/AR-15_style_rifle

    [iii] https://en.wikipedia.org/wiki/AR-15_style_rifle

    [iv] https://www.nytimes.com/2022/02/15/nyregion/sandy-hook-families-settlement.html?referringSource=articleShare

    [v] https://www.washingtonpost.com/nation/2022/02/15/remington-sandy-hook-settlement/

    [vi]   https://www.gunviolencearchive.org/

    [vii]   “Gun Deaths Continue to Rise In American Cities,” U.S. News, 1/10/22

  • Going Viral or Going Nuclear: Social Inflation’s Impact on Jury Verdicts …

    Going Viral or Going Nuclear: Social Inflation’s Impact on Jury Verdicts …

    The Authors

    All three authors are with the law firm of Hall Booth Smith, P.C., and concentrate on various aspects of healthcare defense.  Lindsay A. Nishan (lnishan@hallboothsmith.com) is an Associate in the HBS Charleston office. Samantha Bowen Myers (smyers@hallboothsmith.com) is an Associate in their West Palm Beach, Florida, office. Sandra Mekita Cianflone (scianflone@hallboothsmith.com) is a Partner in the firm’s Atlanta office. She is also a member of the Editorial Board of Advisors for the Journal on Emerging Issues in Litigation, and a frequent contributor to the Emerging Litigation Podcast.

    Going Viral or Going Nuclear:

    Social Inflation’s Impact on Jury Verdicts and How to Safeguard Against It

    By Lindsay A. Nishan, Samantha B. Myers
    and Sandra M. Cianflone

    A juror’s perception of companies and healthcare providers is increasingly colored by TV and social media. The same is true for their understanding of the practice law or medicine, which may be as wrong as it is immovable. “Social inflation” refers to rising litigation costs and the resulting higher insurance payouts which drive up the cost of insurance. In this article the authors, each of whom represents parties in the healthcare industry, discuss the evolving social trends that lead jurors to render “nuclear verdicts,” and what attorneys should consider in mitigating the effects of this phenomenon.

    Social media feeds today are crammed with flashy advertisements from lawyers promising big-dollar settlements against “rich insurance companies.” The number of these commercials has spiked since the 1970s as the phenomenon known as “social inflation” has taken root in the legal system.

    Social inflation is a term of art that refers to rising litigation costs, the impact those costs have on insurance claim payouts, and how much the average policyholder is expected to pay for basic coverage. Recently, the term social inflation has taken on a new meaning as it has become more widely used in the general press. The phrase has come to be associated with tort reform rollbacks, litigation funding, and is most seen in references to so-called “nuclear” jury verdicts, i.e., a jury award that exceeds $10 million.

    But the question remains: What factors contribute to these exorbitantly high jury verdicts?  These outsize awards are often driven by myriad factors including sympathetic jurors, societal conceptions about income and wealth of corporations, the use of emotion-driven “Reptile Theory” tactics by plaintiff attorneys, the media spotlight on “bad apple” physicians, and numerous other social factors. A new factor that influences elevated jury verdicts is the increasing volume of information—whether true or false—that is exchanged on social media platforms.

    One of the lines most affected by this form of social inflation is the healthcare industry and the soaring costs of medical malpractice litigation. This includes lawsuits involving hospital systems, pharmaceutical companies, and their insurers.

    See what the authors have to say about mitigating the impact of social inflation. 

    Get the article now!

  • Persuasion Science for Trial Lawyers with John Blumberg

    Persuasion Science for Trial Lawyers with John Blumberg

    Persuasion Science for Trial Lawyers with John Blumberg

    John joins me to discuss his study of the science behind persuasion. He examines a number of important concepts for trial attorneys, such as how emotions overcome rational thought, and how mental fatigue interferes with how we receive information, leading us to take mental shortcuts rather than doing the hard work of critical thinking. He also writes about understanding the differences between liberal and conservative brains.

    In addition to being an author, John is a board-certified trial attorney based in Long Beach, California. He handles both legal and medical malpractice litigation and is on American Board of Trial Advocates.

    You will especially want to hear my contributions, such as what I know about the rule of threes. For example, a joke about a doctor, a lawyer, and a duck is much funnier than one about just a doctor and a lawyer. Unless, of course, at least one of them is a duck.

    This podcast is the audio companion to the Journal on Emerging Issues in Litigation, a collaborative project between HB Litigation Conferences and the Fastcase legal research family, which includes Full Court Press, Law Street Media, and Docket Alarm. The podcast itself is a joint effort between HB and Law Street Media. If you have comments or wish to participate in one our projects, or want to tell me how much  you learned from John,  please drop me a note at Editor@LitigationConferences.com.

    Tom Hagy
    Litigation Enthusiast and Host of the Emerging Litigation Podcast

    “Your proposition may be good, but let’s have one thing understood: Whatever it is, I’m against it. And even when you’ve changed it or condensed it—I’m against it!”

    —Professor Wagstaff (Groucho Marx) in the 1932 movie Horse Feathers

    Attorney John P. Blumberg’s new book, Persuasion Science for Trial Lawyers, published by Fastcase Full Court Press, “takes a fascinating new approach to examining why certain advocacy techniques do and don’t work to persuade trial juries,” writes Susan G. Poehls. Director of Trial Advocacy Programs and William C. Hobbs Professor of Trial Advocacy at Loyola Law School, Poehls calls it an eye-opening read, one that will run “counter to what many of us have been taught for decades.”

  • Can we rely on shareholders to compel corporations to meaningfully act on ESG issues? | By Rebecca Boon and John Rizio-Hamilton | Bernstein Litowitz Berger & Grossmann

    Can we rely on shareholders to compel corporations to meaningfully act on ESG issues? | By Rebecca Boon and John Rizio-Hamilton | Bernstein Litowitz Berger & Grossmann

    The Authors

    Rebecca Boon

    Rebecca BoonPartner | Bernstein Litowitz Berger & Grossmann

    Rebecca Boon has been litigating securities fraud and shareholder rights actions for over a decade, recovering more than $1.5 billion for the firm’s institutional investor clients. Her work at the firm expands beyond litigation. Rebecca has advanced equality in the workplace by co-founding the Beyond #MeToo working group and leading landmark recoveries that have resulted in hundreds of millions of dollars back to investors and important social change among industries.

    Contact: rebecca.Boon@blbglaw.com

    John Rizio-Hamilton

    John Rizio-HamiltonPartner | Bernstein Litowitz Berger & Grossmann

    John Rizio-Hamilton is one of America’s top shareholder litigators. He works on the most complex and high-stakes securities class action cases, and has recovered billions of dollars on behalf of institutional investor clients.

    John led the trial team that recovered $240 million for investors in In re Signet Jewelers Limited Securities Litigation, a precedent-setting case that marks the first successful resolution of a securities fraud class action based on allegations of sexual harassment.

    Contact: johnr@blbglaw.com

    Can we rely on shareholders to compel corporations to meaningfully act on ESG issues?

    By Rebecca Boon and John Rizio-Hamilton

    This article was first published in the Responsible Investor, Aug., 10th, 2021. Posted with permission of the authors. Copyright 2021 by Rebecca Boon & John Rizio-Hamilton.  All rights reserved.

    There is an ongoing debate about the role that regulators should take regarding corporate obligations and accountability for ESG issues. Earlier this year, the Ontario Capital Markets Modernization Taskforce weighed in with its long-anticipated recommendation on diversity quotas for corporate boards. After receiving significant industry feedback, the Ontario Taskforce changed its initial recommendation from a requirement that public companies meet specific diversity targets, to allowing companies to set their own targets, report them, and develop a timeline for implementation. This ‘market-based’ framework for diversity would rely on investors to push corporations and hold them accountable.

    There was significant backlash when the Ontario Taskforce changed its initial recommendation. It was accused of not going far enough and caving to corporate pressure. However, it decided that allowing corporations to set their own quotas would avoid a ‘one size fits all’ approach, prevent corporations from simply complying with a minimum target, and limit instances of tokenism. The reporting requirement would force companies to implement material quotas and stand by them because they would be too afraid of investor reactions to do anything less than meaningful.

    In crafting governance reforms in some of the most significant derivative litigation in history, we spend considerable time thinking about how to enact meaningful and lasting social change at corporations. One key component is to get insider buy-in – because if the change is simply imposed from above, there could be internal resistance, a lack of commitment and a tendency to make only superficial progress. But the question is: can we rely on shareholders to compel corporations to meaningfully act on ESG issues? Recent history says yes. A market-based approach that incentivises good ESG practices could make a significant difference, when coupled with smart regulation.

    A recent study found that for every additional 8% of a company’s stock owned by the Big Three, the number of new women board members increased by 76%.

    For example, UK regulators just announced that London-listed companies should have at least 40% women and one non-white director on their boards. Similar to the Ontario Taskforce, the goals are not binding but if companies do not meet them, they must explain why. In the US, the Securities and Exchange Commission’s Advisory Panel also recently offered ESG and Diversity & Inclusion disclosure recommendations, designed to allow investors to understand what terms like ‘sustainable’ or ‘green’ actually mean.

    According to Chairman Gary Gensler, “investors should be able to drill down to see what’s under the hoods” at the companies and investment funds making these claims.

    The ‘Big Three’ asset management firms – BlackRock, Vanguard and State Street Global Advisors – recently made headlines when they supported Engine No.1, the Exxon activist investor that led a successful campaign to secure three board seats for its chosen candidates, in a bid to push Exxon to address long-term climate risk and move to clean energy, among other things. Exxon Director Ursula Burns acknowledged that the campaign’s success is part of a “tidal wave” of investor concerns on ESG issues. This victory would not have been possible without the support of three of the biggest investors in the US.

    In addition, big investors have committed to vote against firms that do not appoint more women directors to their boards. In January, State Street announced that it will now vote against the Chair of the Nominating & Governance Committee at companies in the S&P 500 and FTSE 100 that do not disclose the racial and ethnic composition of their boards; and in 2022, it will vote against them if they do not have at least one director from an underrepresented community.

    Similarly, Goldman Sachs will no longer take a company public without two diverse board members, one of whom must be a woman.

    The SEC has just approved a proposal by US marketplace Nasdaq for all its listed companies to disclose board-level diversity statistics and either meet the objective of 1 or 2 ‘diverse’ directors (depending on size) or explain why they have not. Some criticised the Ontario Taskforce – and others heralded it – for not taking Nasdaq’s “extreme position”.

    Are any of these initiatives enough? No. But investor pressure works. A recent study from the Kellogg School of Management at Northwestern University found that for every additional 8% of a company’s stock owned by the Big Three, the number of new women board members increased by 76%. Critically, the same study found that in response to investor pressure, women on boards get “power positions” on audit and nominating committees at even higher numbers than companies complying with mandatory quotas.

    Investors have also taken direct action by filing lawsuits alleging toxic workplace cultures of discrimination and retaliation against female executives, and racial and gender bias. And investors are no less active on environmental issues. For example, investors are currently prosecuting a securities fraud class action in Ohio against Energy Transfer, arising from the explosion of a natural gas pipeline that wreaked environmental havoc in Pennsylvania. These lawsuits are in early stages, but the pressure is on. Corporations have to address social issues because investors are demanding it.

    We have already seen what investor demands for accountability can do in US securities cases involving #MeToo issues and sexual harassment allegations. As the #MeToo movement went mainstream, we saw the first successful securities case addressing sexual harassment allegations – in a shareholder derivative lawsuit involving Fox News parent Twenty-First Century Fox. Investors were listening.

    Following a year of litigation, the lawsuit uncovered allegedly systemic problems at the network involving multiple senior executives, multiple types of discrimination and harassment, and a toxic workplace characterised by surveillance, retaliation and fear.

    Ultimately, as part of a $90m settlement, the plaintiff and the company unveiled a series of governance reforms designed to fix the broken sexual harassment culture at Fox News. The resulting Fox News Workplace Professionalism and Inclusion Council is majority-independent, but also has company participation, along with broad powers and a mandate to identify and solve the problems at the company. A critical component is investor accountability – the Council has the power to issue minority reports that Fox is mandated to post publicly for investors and the world to see. It also has a mandatory five-year term and if Fox determines to dissolve the Council, it must publicly state the reasons why. This approach set the stage for the recent high-profile settlement of a securities case against L Brands, which also settled for $90m. The firm committed to invest a further $45m over at least five years in a Diversity, Equity & Inclusion Council, and take other measures to protect employees from harassment and discrimination, requiring accountability when misconduct occurs.

    We also recently saw the first successful direct securities action certified as a class action involving allegations of sexual harassment against Signet Jewelers. When the market learned that hundreds of women had submitted declarations describing alleged sexual harassment reaching to the company’s highest levels, Signet was forced to halt trading to address them; and when trading resumed, the company’s stock price declined 13%. Again, investors were listening.  The Signet case settled for $240m in late 2020.

    It is too soon to know whether the newer cases will be successful, or whether the new regulations will have any teeth. But pressure from the Big Three and the corresponding dramatic increase in the number of women on corporate boards confirms that when investors demand diversity, companies respond. Investors have shown that they are willing and ready to compel corporations to act on important social issues. And recent securities cases involving #MeToo issues have demonstrated to the corporate world that investors can use their significant power to demand change and hold corporations accountable when they fail to act.

  • The Humble Beginnings and Wild Evolution of the TCPA with Joe Apatov

    The Humble Beginnings and Wild Evolution of the TCPA with Joe Apatov

    The Humble Beginnings and Wild Evolution of the TCPA with Joe Apatov

    Only $32 million!  I mean, why bother even getting out of bed? Joining me to discuss the evolution of the TCPA is Joseph A. Apatov (japatov@mcglinchey.com), a member of the McGlinchey Stafford law firm’s Consumer Financial Services Litigation practice group. Based in their Fort Lauderdale office, Joe litigates on behalf of financial services clients in both state and federal courts, with an emphasis on defending banks, mortgage lenders and servicers, private-label card issuers, and automobile finance companies. 

    Apologies for my trip down memory lane. Bear with me as I regale you with stories from the newsroom at Mealey’s Litigation Reports and the team’s anxious reliance on the “latest” technology: the facsimile machine.

    This podcast is the audio companion to the Journal on Emerging Issues in Litigation, a collaborative project between HB Litigation Conferences and the Fastcase legal research family, which includes Full Court Press, Law Street Media, and Docket Alarm. The podcast itself is a joint effort between HB and Law Street Media. If you have comments or wish to participate in one our projects, or want to tell me how much Joe enlightened you, please drop me a note at Editor@LitigationConferences.com.
     
    Tom Hagy
    Litigation Enthusiast and Host of the Emerging Litigation Podcast

    “The Telephone Consumer Protection Act had humble beginnings,” our guest writes, “with the bill’s sponsor explaining that the statute would permit consumers to bring small claims cases ‘without an attorney,’ and provides for an ‘amount of damages … fair to both the consumer and the telemarketer.’ Twenty-eight years after its enactment in 1991, the Eighth Circuit Court of Appeals affirmed a District Court’s decision to reduce a $1.6 billion jury award in a TCPA class action to only $32 million because the former was ‘shockingly large’ and ‘oppressive,’ in violation of the Due Process Clause …..”

  • 7th Circuit: Is Each Transmission of Biometric Data a BIPA Violation? | By Jennifer M. Oliver | MoginRubin LLP

    7th Circuit: Is Each Transmission of Biometric Data a BIPA Violation? | By Jennifer M. Oliver | MoginRubin LLP

    7th Circuit: Is Each Transmission of Biometric Data a BIPA Violation?

    By Jennifer M. Oliver

    The outcome of this case will have a dramatic impact on statutory damages.

    The Seventh Circuit U.S. Court of Appeals has certified a question to the Illinois Supreme Court over the accrual of claims under the Illinois Biometric Information Privacy Act (BIPA). The question, posed by the court in Cothron v. White Castle Systems, Inc., reads:

    “Do section 15(b) and 15(d) claims accrue each time a private entity scans a person’s biometric identifier and each time a private entity transmits such a scan to a third party, respectively, or only upon the first scan and first transmission?”

    The case was brought by an employee of the White Castle hamburger chain, which requires fingerprint scans for employees to access computer systems. The plaintiff charged that sharing her fingerprints with a third party vendor violated the law. Cothron v. White Castle Sys., No. 20-3202, 2021 U.S. App. LEXIS 37593 (7th Cir. Dec. 20, 2021).

    An accrual rule based on each collection, opponents to such a finding argue, would pose potentially existential damages — especially in the class action context — since BIPA provides for statutory damages of $1,000 or $5,000 per violation. Parties disagree on whether BIPA damages are mandatory or discretionary, however. Should the court determine that the first scan is the only scan that starts the statute of limitations clock ticking, opponents to that interpretation say,  anyone bringing a claim after five years would be out of luck, even if their private biometric data continued to be transmitted more than five years after the first occurrence.

    Preceding the federal court’s certification of this question by just five days, an Illinois appellate court ruled that, yes, claims under sections 15(a) and (b) accrue with each capture and use of a plaintiff’s biometric  information. Watson v. Legacy Healthcare Financial Services, LLC, et al., 2021 IL App (1st) 210279 No. 1-21-0279, Opinion filed Dec. 15, 2021.

    This is an important case to watch. Illinois was the first to implement such legislation, something several states have since emulated.

    Should the state Supreme Court come down in favor of an “all scans” interpretation, defendants may find themselves on the receiving end of devastating damages multipliers. Of course, the Illinois Supreme Court could determine that damage awards are at the discretion of a court, and are not mandatory under the law. Or it could rule that every scan or transmission restarts the statute of limitations clock, but that a claimant may only collect damages once for a series of transmissions of the same data, similar to how damages for defamation are not based on each publication of the same defaming remarks. Yet another possibility is that the court could determine that the clock starts to run when a claimant first learns of an alleged violation, which has precedent in litigation involving latent diseases caused by products, where individuals cannot know they were harmed until they developed a signature disease, i.e., one connected to a specific product.

    The ruling in this case is especially interesting as the COVID-19 pandemic has led to skyrocketing adoption of remote access tools that can collect biometric data for learning, court appearances, and work-from-home arrangements, and a corresponding uptick in BIPA lawsuits.

    Edited by Tom Hagy for MoginRubin LLP. Reposted with permission from the MoginRubin Blog. © 2022 MoginRubin LLP. 

    The Author

    Jennifer M. Oliver

    Jennifer M. OliverMoginRubin LLP

    Jennifer is a partner in the San Diego offices of MoginRubin LLP, where she focuses on antitrust, complex business, and investment litigation. Her experience includes active roles in several high-profile jury trials, serving as lead counsel in complex mediations, and arguing before courts at both the trial and appellate levels. Jennifer earned her B.S. (Business Administration), M.B.A., and J.D. degrees from the University at Buffalo, each with honors, where she also served as the Vice President of the undergraduate student body and was an editor of the Buffalo Law Review and Buffalo Intellectual Property Law Journal. Jennifer is also a certified information privacy professional.

    We are pleased to add that Jennifer is a member of the Board of Advisors for the Journal on Emerging Issues in Litigation and the Emerging Litigation Podcast.

    More from Jennifer and her colleagues.

  • Broken Privilege and IoT with Kathryn Rattigan

    Broken Privilege and IoT with Kathryn Rattigan

    Broken Privilege and IoT with Kathryn Rattigan

    Broken Privilege IOT Kathryn Rattigan

    Joining me to discuss this emerging area of law is Kathryn M. Rattigan, a member of the Business Litigation Group, the Data Privacy + Cybersecurity Team, and the Drone Compliance Team in the Rhode Island office of Robinson Cole.

    Kathryn provides clients guidance regarding privacy and data protection in connection with mobile devices, data storage technologies, mobile apps, and location-based services. She  assists with the development of website and mobile app privacy policies and  terms and conditions. Kathryn is a frequent contributor to the excellent Robinson Cole Data Privacy + Cybersecurity Insider blog.  She holds a J.D. from the Roger Williams University School of Law and a B.A. (magna cum laude) from Stonehill College.

    This podcast is the audio companion to the Journal on Emerging Issues in Litigation, a collaborative project between HB Litigation Conferences and the Fastcase legal research family, which includes Full Court Press, Law Street Media, Docket Alarm and, most recently, Judicata. If you have comments or wish to participate in one our projects, or want to tell me how insightful and informative Kathryn is, please drop me a note at Editor@LitigationConferences.com.

    Finally, yes, “skeevy” is a word. And the law is not settled as to whether Shiloh has privacy rights.

    Tom Hagy
    Host of the Emerging Litigation Podcast

    There are now billions and billions of interconnected devices in the world with more coming online every day. Smart cars. Smart cities. Smart agriculture and so much more. Even our pets are connected.

    And you have to look no further than the Colonial Pipeline ransomware attack to see the real-world consequences of what criminals can pull off by connecting with things large and small.

    Worried about your privacy? Well. There is plenty to worry about.

    Fortunately we also have a lot of people fighting back on the technical, security, law enforcement, and legal fronts.