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Business vs Business disputes, e.g., IP, fraud, contract breaches, antitrust, whistleblowers, M&A, trade secrets, poaching.

The Plight of the Indirect Purchaser

June 30th, 2023|Categories: Class Actions, Complex Business Litigation, ELP|Tags: , , , |

Consumers and businesses -- indirect purchasers of products whose prices are fixed by those who supply the maker of your purchase may not collect damages in states that -- surprisingly, do not have antitrust laws that give them standing. But what about federal law? Why do some states provide for damages and others do not? Are there alternatives? 

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The IRS and Rules About Rules

June 24th, 2023|Categories: Complex Business Litigation, Corporate Compliance, ELP|Tags: , , , |

The Administrative Procedures Act outlines the rules of rule making for federal agencies. Lately it has become a focal point in tax litigation, due in large part to the IRS’s record of refusing to comply with the law's notice-and-comment mandate. Listen to learn more about recent trends in tax litigation. Get an article, too.

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The Rise of Multi-Claimant Litigation in England and How Companies Can Manage Potential Exposure

June 21st, 2023|Categories: Complex Business Litigation, Environmental Torts, HB Tort Notes, Journal, Mass Torts, New Featured Post for Home Page, News|Tags: , , , |

The Authors Sheila L. Birnbaum Mark S. Cheffo Dorothy Cory-Wright Evan Flowers Jacqueline Harrington Will Sachse Stephen Surgeoner Rachel Leary Caroline Power Julie Witham Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world. The Rise of Multi-Claimant Litigation in England and How Companies Can Manage Potential Exposure "With the growth in US/English partnerships for bringing multi-claimant actions in England, there may be an increased interest in leveraging US discovery for copycat English claims. The larger mass torts become in the United States, the more likely they are to feed into related multi-claimant actions in England." Abstract: Recent court decisions have signaled the English courts’ willingness to embrace multi-claimant litigation and to broaden the types of questions decided on a collective basis. These developments have led UK-based plaintiffs’ lawyers to expand mass tort filings, including doing so in partnership with US plaintiffs’ lawyers who are actively advertising in England. This article provides an overview of multi-claimant litigation in England, highlights some of the factors that may lead to its increase, and discusses steps that companies operating in the English market can take now to manage potential exposure. Three primary [...]

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Persuasion as Direct and Honest Trial Advocacy with Jack Siegal

May 6th, 2023|Categories: Complex Business Litigation, ELP, Law Firm Operations|Tags: , , , , |

Persuasion as Direct and Honest Advocacy with Jack Siegal The relevance to jury trials and jury persuasion is obvious. According to studies cited in a 2019 article in Business Insider, people develop first impressions of you “even before you open your mouth.” That means your mere appearance “affects how trustworthy, promiscuous, and powerful people think you are.” It’s the trustworthy part that attorneys need to pay attention to. Regardless of the strength of their case or whether the law is on their side, an attorney still must be persuasive. And, unless the audience – whether it is a judge, a panel of judges, a regulatory body, or a jury – sees you as credible, the rest will likely not matter. But what makes an attorney, or anyone for that matter, credible? Is this something you’re born with or is it something you can develop over time? Is it true, as some studies suggest, that you can change some first impressions by making some changes in how you present yourself, or are you just stuck with a less than trustworthy vibe? Interested in upping your jury persuasion game? A Good Place to Start Listen to my interview with attorney Jack I. Siegal, a partner with Fox Rothschild LLP in Boston. Jack believes we can all make positive adjustments in the nuanced practice [...]

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Litigation Funding Battle Over Litigation Control

April 26th, 2023|Categories: Complex Business Litigation, Corporate Compliance, HB Risk Notes|Tags: , , |

Sysco and Burford Capital Butting Heads Over Litigation Control. Food giant claims funder is interfering with antitrust litigation. Funder says its client is settling for too little.  Public dustups over litigation funding are rare. Leading litigation funder Burford Capital LLC and food distribution giant Sysco Corp. are locking horns over the control and use of litigation funds. Burford says Sysco is settling Burford-funded antitrust litigation for amounts that deny the financial company optimal return on its investment. Sysco says the funder has overstepped its bounds and interfered with Sysco’s litigation oversight. Sysco received $140 million from Burford in part to fund price-fixing lawsuits against poultry, pork and beef producers – complex multidistrict litigation involving hundreds of plaintiffs, dozens of defendants, and related criminal suits brought by the Department of Justice (DOJ). So far, settlements of private antitrust litigation have reached into the hundreds of millions, and DOJ has levied more than $100 million in fines. Burford, which gets a share of any settlements in the antitrust litigation, says Sysco is settling for too little. Sysco has sued companies associated with Burford – Glaz LLC, Posen Investments LP, and Kenosha Investments LP – claiming they are meddling in Sysco’s settlement efforts. Glaz, Posen, and Kenosha are all companies which have Burford Capital Limited as the only direct or [...]

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Alleged Hair Product Injuries Impact Women of Color

April 26th, 2023|Categories: Class Actions, Complex Business Litigation, Environmental Torts, Mass Torts|Tags: , , , |

L’Oréal Among Defendants in Litigation Over Hair Products. Dozens of hair straightener cases allege higher incidence of cancers and other diseases. Plaintiffs in dry shampoo litigation say products contain benzene.  Seven companies control the U.S. hair product industry. L’Oréal has been hit hard in recent hair care litigation related to straighteners, relaxants, and dry shampoos. L’Oréal was named a defendant in nearly sixty complaints alleging that straightening products manufactured by the beauty giant have caused cancer in its consumers. L’Oréal has also been named a defendant in a proposed class-action for its Redken dry shampoo that allegedly contains the carcinogen benzene. Other large industry players such as Johnson and Johnson and Unilever have also been accused of selling dry shampoos with dangerous levels of benzene. Straighteners and Relaxers Litigation Dozens of cases have been consolidated in multidistrict litigation against L’Oréal for its potentially cancerous hair straighteners and relaxers. Mitchell v. L’Oréal USA Inc. is a typical case.  It was filed by Missourian Jennifer Mitchell, a black woman, after her diagnosis of uterine cancer which she claims was caused by endocrine disrupting chemicals (EDCs) in L’Oréal’s hair straighteners and relaxers. Jennifer Mitchell was diagnosed with her cancer on August 10, 2018. “Ms. Mitchell was first exposed to EDCs and/or phthalate-based products around 2000, at or around the age [...]

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Electronic Fund Transfer Fraud with Brad Rustin

April 26th, 2023|Categories: Complex Business Litigation, Corporate Compliance, ELP|Tags: , , , , |

Electronic Fund Transfer Fraud with Brad Rustin Grifters, scammers, con artists Sen. Elizabeth Warren, who championed the creation of Consumer Financial Protection Bureau (CFPB), calls the Zelle digital payments network a “preferred tool for grifters like romance scammers, cryptocurrency con artists, and those who prowl social media sites advertising concert tickets and purebred puppies — only to disappear with buyers’ cash after they pay.”   18 million Americans defrauded Scams and fraud committed via the Zelle platform and other peer-to-peer services are surging. According to one lawsuit 18 million Americans were defrauded by schemes perpetrated via apps like Zelle in 2020. Some 1,500 member banks and credit unions participate in the Zelle service. People sent $490 billion via the app in 2021. But Zelle owner, Early Warning, and its consortium comprising Bank of America, Truist, Capital One, JPMorgan Chase, PNC Bank, U.S. Bank, and Wells Fargo, have refused to refund customers for most of their losses. Sen. Warren issued a report that the claims for fraud received by just four banks will likely exceed $255 million by the end of 2022 – a $165 million increase over 2020. The senator and consumers say Zelle is violating federal consumer protection law. What is fraud? The heart of the problem is this: banks and consumers do not agree on the definition [...]

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Pixel Litigation the Latest Craze in Privacy Law

April 7th, 2023|Categories: Complex Business Litigation, HB Risk Notes, Technology Law|Tags: , , , , |

Meta, Google Face Barrage of Pixel Lawsuits in Digital Privacy War META PLATFORMS INC. AND GOOGLE  are currently facing nearly 70 lawsuits involving large companies and some hospital systems or individual health care providers utilizing Pixel tracking tools embedded on their websites and applications. Sensitive private data such as financial information gathered from filing tax returns online or patient healthcare information stored on patient portals is being actively tracked and sent to Meta and Google for both analytical and advertising purposes. Tracking pixels are a 1x1 Pixel graphic that serves as a snippet of code used for tracking user behavior, site conversions, web traffic, and other metrics generated from a site’s server. In 2018, Meta told Congress that there were more than 2 million Pixels across the web, which at the time, was one of the largest data-harvesting operations most internet users had ever seen. Meta makes their Pixel code freely available to anyone and any business – thus the amount of Pixel tracking has exponentially grown since Meta testified before Congress. The analytical information that companies gleam from Pixel tracking is paying off and is featured on everything from fast food companies such as Chick-Fil-A, media companies like iHeart Radio, and even tax-filing websites such as Tax Slayer or TaxAct. Pixel Tax Data On November 22, 2022, [...]

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Toxic Train Wreck Sparks Litigation

April 7th, 2023|Categories: Complex Business Litigation, Environmental Torts, HB Risk Notes|Tags: , , , |

Legal News: Ohio AG Sues Norfolk Southern Over East Palestine Train Spill. Legal News On March 14, 2023, Ohio filed a lawsuit against Norfolk Southern Railway Company, a multi-billion dollar entity, in the U.S. District Court for the Northern District of Ohio. The lawsuit stems from the East Palestine train derailment (the “Derailment”), which took place on February 3, 2023. The lawsuit seeks to “recover response costs, redress damages to natural resources, and receive an order for injunctive relief, civil penalties, and damages.”  The Derailment  The Derailment of train 32N occurred at approximately 9 PM in East Palestine, Ohio—roughly fifty miles northwest of Pittsburgh, Pennsylvania. The accident is believed to have been caused by the overheating and failure of at least one wheel bearing. Twenty of the derailed cars contained hazardous materials, including vinyl chloride, butyl acrylate, ethylhexyl, acrylate, and ethylene glycol monobutyl ether.  Chief among the substance concerns was vinyl chloride, which emits toxic substances when it burns. The Environmental Protection Agency (EPA) states that it was notified of the Derailment about two hours after it occurred, and personnel were on site five hours after the accident. The surrounding downwind area was evacuated. Reports were made of health and safety hazards to people and animals in the affected region. Three days after the crash, emergency responders intitiated a controlled [...]

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Greenhouse Gases Cited in Suit to Invalidate Drilling Leases

April 2nd, 2023|Categories: Complex Business Litigation, Environmental Torts, HB Risk Notes|Tags: , , |

Environmentalists Argue Federal Government Failed to Analyze Social Costs of Fossil Fuel Emissions from Drilling Leases “Federal public lands used for fossil fuel extraction contribute 24% of the United States’ Greenhouse Emissions,” according to 10 environmental groups in their ongoing lawsuit against the U.S. Department of the Interior, Secretary of the Interior Debra Haaland, the Bureau of Land Management (BoLM), and BoLM Director Tracy Stone-Manning (Dakota Resource or Council, et al, v. U.S. Department of the Interior, et al., D. D.C., No. 1:22-cv-1853 ). Their lawsuit seeks to invalidate 173 oil and gas leases approved in June 2022 across eight states:  Colorado, Montana, Nevada, New Mexico, North Dakota, Oklahoma, and Utah, and Wyoming.  Plaintiffs include: Dakota Resource Center, Center for Biological Diversity, Citizens for a Healthy Community, Living Rivers & Colorado Riverkeeper, Montana Environmental Information Center, Rio Grande Waterkeeper, Sierra Club, Waterkeeper Alliance, Western Waterheads Project, and WildEarth Guardians. The environmental groups argue the BoLM is in violation of the National Environmental Policy Act (NEPA) 42 U.S.C. § 4321, for failing to make efforts to prevent or eliminate damage to the environment and biosphere. The groups also argue that Secretary Haaland failed to follow the instructions of the Federal Land Policy and Management Act (FLPMA) 43 U.S.C. § 1701, which requires her office to “take any action necessary to prevent [...]

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Conservationists Try Again to Block Drilling in Alaska’s Western Arctic

April 1st, 2023|Categories: Complex Business Litigation, Corporate Compliance, Environmental Torts, HB Risk Notes|Tags: , |

Willow II: Conservation Groups Sue Again to Stop Oil Project in Alaska’s Western Arctic Several conservation groups filed a lawsuit in the U.S. District Court for the District of Alaska against the federal government in another effort to halt the Willow Master Development Plan (Willow Oil Project), a proposed oil and gas development in Alaska’s Western Arctic. Spearheading the development is ConocoPhillips Alaska Incorporated. The project was approved for a second time by the Biden Administration only a day before the filing of the plaintiffs’ complaint. The Willow Oil Project The Willow Oil Project is a multi-billion dollar project that would involve the construction of drilling pads, pipelines, and other infrastructure in the National Petroleum Reserve-Alaska (Reserve). The project involves drilling up to 250 wells for the purpose of generating 586 million barrels of oil within its 30-year lifespan. As a direct result of the activity, roughly 258 million metric tons of greenhouse gas emissions would be released into the atmosphere. The project has been controversial due to concerns over its potential impacts on the environment and wildlife in the area. Willow II Case History ConocoPhillips first proposed the Willow Oil Project to the Bureau of Land Management (BoLM) in May of 2018. After determining that the project was a major federally-involved action that would significantly affect the [...]

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The New European Unified Patent Court with Marianne Schaffner and Thierry Lautier

March 2nd, 2023|Categories: Complex Business Litigation, ELP, HB Tort Notes, Intellectual Property, Technology Law|Tags: , , , |

What's the new European patent court mean to global innovators? The European Union’s new Unified Patent Court is an international body set up by participating EU Member States to deal with the infringement and validity of both Unitary Patents and European patents. The court's objective is “putting an end to costly parallel litigation and enhancing legal certainty.” Unitary patents are intended to make it possible to get patent protection in up to 25 EU Member States by submitting a single request to the European Patent Office, making the procedure simpler and more cost effective for applicants. The new system goes live on June 1, 2023. What must U.S. and multi-national U.S.-based companies understand about the court? Why should inventors and their organizations factor it in to any existing or new patent strategy they may be developing? For answers to these questions and more listen to my interview with attorneys Marianne Schaffner and Thierry Lautier who practice out of the Paris office of Reed Smith. Marianne heads the intellectual Property team in Paris and the patent practice in Europe. She manages complex national and transnational patent, trade secrets and trademark disputes in the healthcare, chemistry, technology and telecommunications sectors. Thierry is part of the firm’s global Intellectual Property Group. With a dual legal and engineering/scientific background, Thierry uses his understanding, knowledge, and experience to provide clients with [...]

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