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Procedural Challenges to the IRS’s Compliance With the APA and Its Impact on Tax Litigation

June 16th, 2023|Categories: Corporate Compliance, Emerging Litigation & Risk, Journal, New Featured Post for Home Page, News|Tags: , , , , |

The Author Jeffrey S. Luechtefeld (jeff.luechtefeld@chamberlainlaw.com) is a tax controversy and litigation attorney with Chamberlain, Hrdlicka, White, Williams, and Aughtry (Atlanta, Georgia) where he focuses his practice on resolving tax disputes with the Internal Revenue Service, administratively or through litigation. Jeff previously was a Special Trial Attorney for the IRS Office of Chief Counsel as well as a director in the tax controversy practice of a big four accounting firm. 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. Procedural Challenges to IRS Compliance With the APA and Its Impact on Tax Litigation Abstract: The Administrative Procedure Act (APA) places specific requirements on agencies of the federal government when engaged in a “rule making” that has the force and effect  of law. Recently, the APA has become a focal point in tax litigation, due in large part to the IRS’s history of refusing to comply with the process mandated by the APA. This article focuses on procedural challenges to the IRS’s compliance with the APA based on the IRS’s history of non-compliance with the APA’s notice-and-comment requirement. It highlights recent trends in tax litigation and considers the future of APA challenges in this area. [...]

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Ohio Supreme Court Ruling Sends Important Reminder: Long-Standing, Fundamental Principles of Insurance Policy Construction and Law Are Applicable to Cyber Claims

June 16th, 2023|Categories: Emerging Litigation & Risk, HB Tort Notes, Insurance, Journal, Mass Torts, New Featured Post for Home Page, News|Tags: , , , , |

The Authors Judy Selby (judy.selby@kennedyslaw.com) is a Partner at Kennedys (New York) where she focuses her practice primarily on insurance coverage matters with a concentration in coverage for exposures arising out of emerging technology, digital, and compliance risks. Tracey M.Kline (tracey.kline@kennedyslaw.com) is an Associate at Kennedys (Philadelphia) where she focuses her practice primarily on insurance coverage litigation and cyber matters. 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. Ohio Supreme Court Ruling Sends Important Reminder: Long-Standing, Fundamental Principles of Insurance Policy Construction and Law Are Applicable to Cyber Claims Abstract: On December 27, 2022, the Ohio Supreme Court unanimously ruled that a business owner’s property insurance policy issued by Owners Insurance Co. to EMOI Services, LLC did not afford coverage for losses sustained in a ransomware attack because computer software is “entirely intangible” and “cannot experience ‘direct physical loss or physical damage.’” EMOI Servs., LLC. v. Owners Ins. Co., 2022-Ohio-4649 (Ohio 2022). In doing so, the court reversed an attention-getting split decision by the lower appellate court. This article takes an in-depth look at the case and discusses its significant implications. The Ohio Supreme Court’s decision was based on its commonsense [...]

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Unarmed or Unwell: How Federal Law Infringes Medical Marijuana Users’ Second Amendment Rights

June 14th, 2023|Categories: Emerging Litigation & Risk, Employment, Journal, New Featured Post for Home Page|Tags: , , , |

The Author Griffen Thorne (griffen@harrisbricken.com) is an attorney in the Los Angeles office of Harris Bricken Sliwoski LLP, an international emerging markets law firm. He represents clients in highly regulated emerging industries, such as cannabis, in corporate and commercial transactions. 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. Unarmed or Unwell: How Federal Law Infringes Medical Marijuana Users’ Second Amendment Rights As Justice Amy Coney Barrett noted while on the Seventh Circuit, “legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous.” In the coming years, the government’s ability to write off all medical marijuana users as dangerous is likely to be curtailed, even if the Controlled Substances Act continues to make marijuana use a federal crime. Abstract: In the wake of the 2022 U.S. Supreme Court case New York State Rifle & Pistol Association, Inc. v. Bruen, federal courts have reached opposite outcomes on whether federal prohibitions on marijuana users’ rights to own or possess firearms are constitutional. As a result, there is a high likelihood of a circuit split that results in the overturning of those federal laws. The author [...]

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Digital Health Care Companies, Beware: Federal Agencies Are Tracking Your Use of Online Tracking Technologies

June 1st, 2023|Categories: Corporate Compliance, Emerging Litigation & Risk, HB Tort Notes, Journal, Mass Torts, New Featured Post for Home Page, News|Tags: , , , , |

The Authors Patricia A. Markus (trish.markus@nelsonmullins.com) represents health care providers and health technology companies across the country on wide-ranging regulatory compliance, reimbursement, licensure, and operational matters, with a special focus on issues surrounding health information privacy, security, and technology. Shane Duer (shane.duer@nelsonmullins.com) focuses his practice on healthcare regulatory and corporate matters, with an emphasis on data privacy, cyber security, and information management concerns within and beyond the health care industry. 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. Digital Health Care Companies, Beware  Federal Agencies Are Tracking Your Use of Online Tracking Technologies. Abstract: Health care industry stakeholders have regularly used online tracking technologies to help improve patient experience. However, growing scrutiny by the Office for Civil Rights, which enforces the Health Insurance Portability and Accountability Act of 1996 (HIPAA), requires covered entities and business associates to proceed cautiously in their use of such technologies. In addition, recent enforcement actions by the Federal Trade Commission make clear that a wide range of digital health companies, whether or not regulated by HIPAA, must tread carefully when collecting and disclosing personal information related to health, especially where consumers’ location data is to be used for [...]

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“Years of Deception” Behind Consumer Privacy Violations Alleged

May 2nd, 2023|Categories: Emerging Litigation & Risk, HB Risk Notes|Tags: , , , , |

Mental Health Platform's Data Sharing Practices Challenged. BetterHelp allegedly shared personal identifiable info with third parties.  FTC files administrative complaint asserting "years of deception." Days later, two class actions were filed in the Northern District of California.   Online mental health company BetterHelp, Inc. is facing allegations on two fronts for allegedly sharing personal identifiable information with third parties and breaching consumer privacy. The Federal Trade Commission (“FTC”) initiated an administrative complaint against the California-based online mental health company on March 2, 2023, after what they call years of deceptive practices and blatant denial of a media report published by Jezebel in February 2020. The article cited evidence that BetterHelp shares sensitive patient information and email account information with third parties such as Facebook, Snapchat, Criteo, and Pinterest. Days after the FTC filed its complaint, consumers filed two class actions in the Northern District of California’s San Jose Division (C.M. v. BetterHelp, Inc., March 7, 2023, 5:23-cv-01033 and Jane Doe v. BetterHelp, Inc., March 11, 2023, 5:23-cv-01096). Both consumer privacy lawsuits state that their facts are largely supported by experts in the field of data privacy. BetterHelp is a Delaware corporation with its principal office or place of business in Mountain View, Calif. On its website the company claims it is the “world’s largest therapy platform” with more [...]

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Government Involvement in Medical Decisions During Outbreaks with Bryce McColskey and Sandra Cianflone

March 28th, 2023|Categories: ELP, Emerging Litigation & Risk, HB Tort Notes|Tags: , , , , |

Government Involvement in Medical Decisions During Outbreaks  It's apparently (and hopefully) on its last legs. The Covid-19 pandemic was the most recent health issue to raise questions around government’s involvement (or interference) in an individual’s control over their own medical treatment. In their article – Government Involvement in Medical Care Decisions During Outbreaks of Disease: How Far is Too Far? – our guests wrote about the intersection of law and medicine. They reviewed medical mandates, implications brought about by the impact of advances in science and medicine, and where role of government to protect public health intersects (or collides) with personal healthcare choices. They focused is on governmental responses to the pandemic, that is, what the government can mandate in the spirit of public health, and not on the separate issue of abortion, which is a “choice” subject for another day. How much authority do government agencies or even the courts have over a person’s healthcare decisions? People often assume the practice of medicine and the enactment and enforcement of laws are separate and independent enterprises; that they remain fixed in their respective corners. However, they wrote, after a deeper  dive  into  history and precedent, it’s evident that the tension between individual rights and health-related mandates has existed for some time. Listen to my interview with the authors, Bryce McCloskey and  Sandra M. [...]

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Government Involvement in Personal Medical Care Decisions During Outbreaks of Disease: How Far Is Too Far? by Bryce McColskey and Sandra M. Cianflone

March 23rd, 2023|Categories: Emerging Litigation & Risk, HB Tort Notes, Journal, Mass Torts, New Featured Post for Home Page, News|Tags: , , , , |

The Authors Bryce McColskey (bmccolskey@hallboothsmith.com) is an attorney with Hall Booth Smith, P.C., based in Jacksonville, Florida, where he focuses on medical malpractice and professional liability law. Sandra M. Cianflone (scianflone@hallboothsmith.com) is a partner in the Atlanta office of Hall Booth Smith, where she concentrates on a variety of aspects of healthcare defense and chairs the firm’s Coronavirus Task Force. She is also a member of the Editorial Board of Advisors of the Journal of Emerging Issues in Litigation. 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. Government Involvement in Personal Medical Care Decisions During Outbreaks of Disease:  How Far Is Too Far? "Breakthroughs in technologies, our knowledge of diseases and mutations, and advances in treatment options have been remarkable and have drastically reduced fatality rates from disease outbreaks. However, regardless of medical achievements, rapid changes in any field open the door to renewed debates over different laws and individual rights." Abstract: The coronavirus pandemic is the latest health issue to raise the question of government’s involvement (or interference) with an individual’s control over their own healthcare and medical treatment. In this article, the authors, two health care and professional liability [...]

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The Cannabis Employment Law Patchwork with Keya Denner

March 22nd, 2023|Categories: ELP, Emerging Litigation & Risk, HB Tort Notes|Tags: , , , , |

The Cannabis Employment Law Patchwork with Keya Denner Maryland and Missouri are the latest states to legalize recreational cannabis for people 21 and older. Voters came out in favor of legalization in the November 2022 midterms, bringing the total recreational jurisdictions to 22 states and the District of Columbia. Voters in North Dakota, South Dakota, and Arkansas, however, decided against recreational marijuana. It remains legal for medical reasons in all five states.  In the employment context, both recreational and medicinal uses raise questions about protections for employees who use the drug legally. Which states are enacting those protections? What do multi-state employers need to do? What about drug testing? As a requirement to get a job and as a requirement to keep your job? What about this: who is going to say whether a worker is impaired? Will there really be hall monitors trained in spotting your high? For answers to these questions and more, listen to my interview with Keya Denner, a partner at Constangy, Brooks, Smith & Prophete LLP. Keya is an experienced litigator who has been practicing labor and employment law for almost 20 years. Few attorneys nationwide match Keya’s expertise in the area of legal cannabis and its impact on the workplace. He has counseled Fortune 500 companies in the retail, hospitality, and global logistics spaces [...]

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How Insurance Companies Defraud Their Policyholders, and What Courts and Legislators Should Do About It

March 14th, 2023|Categories: Emerging Litigation & Risk, Journal, New Featured Post for Home Page, News|Tags: , , , , , |

The Authors Robert D. Chesler (rchesler@andersonkill.com) is a shareholder in Anderson Kill's Newark office. Bob represents policyholders in a broad variety of coverage claims against their insurers and advises companies with respect to their insurance programs. Bob is also a member of Anderson Kill's Cyber Insurance Recovery group. Bob has served as the attorney of record in more than 30 reported insurance decisions, representing clients including General Electric, Ingersoll-Rand, Westinghouse, Schering, Chrysler, and Unilever, as well as many small businesses including gas stations and dry cleaners. He has received numerous professional accolades, including a top-tier ranking for Insurance Litigation: New Jersey in Chambers USA: American's Leading Lawyers for Business, which dubs him a "dominant force in coverage disputes" and cites a client who calls him "a dean of the insurance Bar; one of the brightest in writing about and analyzing insurance coverage." Amy Weiss (aweiss@andersonkill.com) is a law clerk pending admission in Anderson Kill’s New York office. She focuses her practice on insurance recovery, exclusively on behalf of policyholders. While attending the Benjamin N. Cardozo School of Law, Amy worked as a Summer Associate at Anderson Kill and a Judicial Intern for the Honorable Nicholas G. Garaufis at the United States District Court for the Eastern District of New York. She served as Senior Articles Editor for the Cardozo [...]

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Potential Pitfalls with Adult-Use Cannabis: What Both Employers and Employees Should Know

March 5th, 2023|Categories: Emerging Litigation & Risk, Journal, New Featured Post for Home Page, News|Tags: , , , , |

The Authors Adam R. Dolan (adolan@gllawgroup.com) is a partner with Gfeller Laurie LLP, a tested litigator with a multifaceted practice, he has extensive experience handling catastrophic transportation, general liability, and products liability matters. He is a frequent writer and speaker on topics related to the cannabis industry. Kaylee E. Navarra (knavarra@gllawgroup.com) is an associate with Gfeller Laurie LLP where she works on matters involving commercial disputes, bad faith/ extracontractual liability, and insurance coverage. 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. Potential Pitfalls with Adult-Use Cannabis: What Both Employers and Employees Should Know "Employers may also take action when the employee, while working, manifests specific articulable symptoms of cannabis impairment that decrease or lessen the employee’s performance of the employee’s tasks or duties and/or the employee, while working, manifests specific articulable symptoms of cannabis impairment that interfere with the employer’s obligation to provide a safe and healthy workplace as required by state and federal workplace safety laws." Abstract: Recreational cannabis use for adults is legal in 21 states, having made its way eastward from Western jurisdictions that first addressed the issue. But these laws govern personal use during personal time. While they [...]

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

March 2nd, 2023|Categories: ELP, Emerging Litigation & Risk, 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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Reimagining the Administration of Justice with Qudsiya Naqui of Pew Charitable Trust

February 27th, 2023|Categories: ELP, Emerging Litigation & Risk, HB Tort Notes, Law Firm Operations, Technology Law|Tags: , , , , |

Before COVID-19 came to America in early 2020, “going to court” literally meant putting on your shoes and walking into a courthouse, typically a large building with courtrooms inside, and people in robes and business suits and, in some cases, more restrictive attire.  Stoked by necessity, courts sprinted toward solutions for keeping the wheels of justice spinning while also keeping everyone away from each other. Until then it didn’t seem possible that attorneys could or would appear before judges via digital screens, like George Jetson getting yelled at by Mr. Spacely over some hilarious mishap at the sprocket factory. Pew Charitable Trust concluded an in-depth study of the courts with the 2021 release of a report,  “How Courts Embraced Technology, Met the Pandemic Challenge, and Revolutionized Their Operations.” After examining emergency orders from all 50 states and Washington, D.C., and court approaches to virtual hearings, e-filing, and digital notarization, the researchers wrote that it was a time for "reimagining how to administer justice.” Was the adoption of technology effective? Were there any hiccups? Was technology widely embraced? Were the effects of new efficiencies enjoyed evenly across the socio-economic spectrum? Do we think courts will continue to reimagine how they administer justice without the crushing pressure of widespread disease? Listen to my interview with Qudsiya Naqui who leads Pew’s research at the intersection of technology [...]

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