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

June 1st, 2023|Categories: Emerging Litigation & Risk, HB Emerging Law Notes, HB Tort Notes, Journal on Emerging Issues in Litigation, New Featured Post for Home Page, Tort Litigation|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 [...]

Read More

Big Tech’s Race to Develop Superior Artificial Intelligence Technology

May 11th, 2023|Categories: Artifical Intelligence|Tags: , , , , , , , , , , , , , |

Big Tech’s Race to Develop Superior Artificial Intelligence Technology Will A.I. Compromise Free Enterprise, Disclosure and Security? America’s Big Five tech companies – Amazon, Apple, Facebook, Google and Microsoft – are racing to develop technology they claim will change the world -- again. The tech Goliaths have more than 33,000 researchers at their disposal to create artificial intelligence (A.I.) technology with an obvious and perpetual prize: revenue.  It's the talk of the world. NBC Nightly News recently predicted the impacts that A.I. will have on society in the coming years. A.I. tech was also the center of attention at the 2023 Davos Economic Summit.  Prominent tech leaders such as Elon Musk and the CEO of OpenAI, Sam Altman, heralded that A.I. will improve virtually everyone’s lives, but with some risks involved.  Andrew Perlman, dean of Suffolk University Law School, says there is nothing "future" about it. In The Implications of ChatGPT for Legal Services and Society, he wrote, "The disruptions from AI's rapid development are no longer in the distant future. They have arrived ..." And for the legal industry, he said, "ChatGPT may portend an even more momentous shift than the advent of the internet." Just one legal application out there today is the use of A.I. technology (GPT-3) by Docket Alarm, a popular court docket [...]

Read More

Intellectual Property Trial Team Diversity with Tara Trask

May 9th, 2023|Categories: ELP, Podcasts|Tags: , , , , , , , , , , , , , , , , , , , , |

Intellectual Property Trial Team Diversity with Tara Trask Diversity and inclusion initiatives aren’t just valuable for checking off compliance boxes and writing marketing copy. Those benefits are a distant second and third to the genuine value team diversity has on the success of a company or a project. That also means law firms and trials. A recent article published by the American Bar Association Tort and Insurance Practice Section hailed diversity of perspectives for how they improve a team’s ability to resolve legal issues, innovate solutions, and introduce  factors homogeneous teams may miss. The National Association for Law Placement reported that women and people of color are making great progress at major law firms. Nearly half of associates are women and, based on summer associate statistics, women are expected to break the 50% as early as this year or next. Black associates made impressive gains, but there remains room for improvement. At the partner level, however, Black and Latinx women and men remain stuck in the low single digits. In this episode we drill down even further to examine trial teams in the intellectual property arena. I was thrilled to speak with Tara Trask, one of the nation’s leading experts on IP trials and juries, having directly worked on or observed more of these proceedings than just about anyone. Tara [...]

Read More

Persuasion as Direct and Honest Trial Advocacy with Jack Siegal

May 6th, 2023|Categories: ELP, Podcasts|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 [...]

Read More

Electronic Fund Transfer Fraud with Brad Rustin

April 26th, 2023|Categories: ELP, Podcasts|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 [...]

Read More

Legal Issues With Blockchain in Banking and Fintech: Implementing New Applications | 5.24.2023

April 6th, 2023|Categories: Emerging Issues Webinars, Featured On-Demand, HB Tort Notes, New Webinars, Tort Litigation, Tort Webinars|Tags: , , , , , , |

Legal Issues With Blockchain in Banking and Fintech: Implementing New Applications Leveraging DLT Platforms for Recordkeeping, Payments, KYC, and More; Concerns With Regulation, Privacy, Adaptation DLT is widely considered to be a disruptive force in the banking and financial services industries. Through a decentralized, peer-to-peer networked database, transactions are verified, monitored, and enforced without a third-party intermediary, reducing costs and providing real-time information to network participants. The best known use of blockchain is bitcoin, but banks and fintech companies are using DLT platforms for other purposes, including account records, trading and financial transactions, KYC protocols, and loan and payment processing. DLT is inherently more secure and less susceptible to fraud than centralized platforms, but there are challenges to implementing DLT. Counsel will need an understanding of the technology as well as the legal ramifications of blockchain, including concerns with privacy, integration into existing systems, regulatory uncertainty, and scalability. Listen as our authoritative panel discusses the potential applications of blockchain technology and its advantages over centralized platforms concerning authentication, data security, and cost-efficiency. The panel will also address the legal and logistical issues to consider in implementing DLT. Michael C. Egan Partner Cooley Rebecca J. Simmons Partner Sullivan & Cromwell CLE Live Webinar 90-minute premium CLE video webinar with interactive Q&A Wednesday, May 24, 2023 1:00pm-2:30pm EDT | 10:00am-11:30am [...]

Read More

AI Image Generators and Copyright: Eligibility in the U.S., UK, EU, and More; Fair Use, Derivative Works, Liability

April 6th, 2023|Categories: Emerging Issues Webinars, Featured On-Demand, HB Tort Notes, New Webinars, Tort Litigation, Tort Webinars|Tags: , , , , , , |

AI Image Generators and Copyright: Eligibility in the U.S., UK, EU, and More; Fair Use, Derivative Works, Liability AI programs are now readily available for all. Stability AI, Lensa, and other AI image creation tools create original works of art, raising the question of IP protection for such art. The United States requires human authorship in order to obtain copyright protection, and so far, the U.S. Copyright Office has declined to grant copyright registrations for AI-created works of art based on a lack of human authorship (one of these decisions is being challenged in Thaler v. Perlmutter (D.D.C. filed June 2, 2022)). While some countries take a similar approach to the US, others treat the issue of copyright eligibility for AI-generated art quite differently and provide at least some protection of computer generated works. Questions have also been raised as to whether AI-generated images constitute derivative works and whether such images and the AI generation tools used to create them infringe third-party copyrights, or whether the fair use doctrine or other defenses may apply. The first lawsuits involving image generators have now been filed raising copyright claims in addition to other claims. Listen as our authoritative panel of IP attorneys examines AI image generators and the associated copyright issues. The panel will discuss eligibility in the U.S. and the recent actions by the Copyright [...]

Read More

Contaminated Sites and Long-Term Stewardship: Meeting Obligations for Residual Contamination

April 6th, 2023|Categories: Emerging Issues Webinars, Featured On-Demand, HB Tort Notes, New Webinars, Tort Litigation, Tort Webinars|Tags: , , , , |

Contaminated Sites and Long-Term Stewardship: Meeting Obligations for Residual Contamination Best Practices for Counsel in Implementing, Maintaining, and Enforcing LTS Potential LTS obligations often flow from residual contamination. These obligations frequently center on the vapor intrusion (VI) pathway. VI is the migration of vapor-forming chemicals from any subsurface source into an overlying building. This evolving inhalation "pathway" presents significant challenges and complicates environmental remediation for Brownfield development projects, real estate transactions, and management of commercial/industrial real estate portfolios. The U.S. EPA's national Institutional Control (IC) Policy provides important guidance for investigation and remediation, and ultimately closing, contaminated sites. The IC Policy outlines an approach to help meet potential LTS obligations for managing residual risk and achieve site closure. LTS is an increasing part of cleanup programs to get contaminated properties ready for beneficial reuse. Ongoing monitoring and maintenance (especially for the VI pathway) are needed to ensure continued protection of human health and the environment. Environmental counsel to companies must understand the legal risks from the contaminated sites, when and how to implement LTS, what needs to be done to ensure LTS obligations are met, and the new LTS tools and technologies available to tailor a site-specific approach. Listen as our panel of experts examines LTS and what that includes from a monitoring plan to reporting requirements. The panel will discuss the viability of remedies [...]

Read More

Managing Class Representative Discovery: Plaintiffs’ Strategies for Winning Certification

April 6th, 2023|Categories: Emerging Issues Webinars, Featured On-Demand, HB Tort Notes, New Webinars, Tort Litigation, Tort Webinars|Tags: , , , , , , , , |

Statistics in Class Certification and at Trial: Leveraging and Attacking Statistical Evidence Lessons From Recent Cases on the Use of Statistics to Prove Classwide Liability and Damages Increasingly, statistical evidence is used by both sides to argue the makeup of the class, damages, liability, and certification in every type of case: employment, data breach, ESG, antitrust, consumer product, and commercial class action cases. Economists and practitioners can use statistics to measure the impact on individual members and show where there is no impact.Building on Wal-Mart Stores v. Dukes, Comcast v. Behrend, and Tyson Foods v. Bouaphakeo, the Ninth Circuit Court of Appeal recently explored the use of statistical expert evidence in satisfying relevant requirements under Rule 23(b)(3) in Olean Wholesale Grocery Co-op Inc. v. Bumble Foods L.L.C. and once again shifted the certification landscape.Class action lawyers must be able to analyze both the methodology and inferential process that produce statistical evidence, and their effect on admissibility, relevance, and strength of the resulting evidence.Listen as our experienced panel of practitioners examines the use of statistics in class litigation and the implications of recent case law for class litigators seeking to use or restrict these kinds of evidence during class certification and trial. James Finberg Partner Altshuler Berzon Aphrodite Kokolis Counsel Schiff Hardin ON-Demand CLE Webinar This Strafford production has been specially selected for HB audiences. What are [...]

Read More

Managing Class Representative Discovery: Plaintiffs’ Strategies for Winning Certification

April 4th, 2023|Categories: Emerging Issues Webinars, Featured On-Demand, HB Tort Notes, New Webinars, Tort Litigation, Tort Webinars|Tags: , , , , , , , |

Managing Class Representative Discovery: Plaintiffs' Strategies for Winning Certification Preparing for Discovery Pre-Suit, Negotiating Fair Protocols, Defending Depositions, and Responding To Written Discovery Class representative discovery is an essential component of establishing Rule 23 class certification. Experienced plaintiffs' counsel will need to be well-versed in the many defense strategies for eliciting class representative testimony and discovery that could undermine the claims in a class action lawsuit and challenge class certification. Preparing for discovery begins before the case is filed, and class representatives must thoroughly understand their obligations in the discovery process. Plaintiffs’ counsel must think through and negotiate protocols related to several topics that affect the scope of discovery, including protective orders ESI protocols. Plaintiffs’ counsel must also carefully guide their class representatives through written discovery and depositions, where the class representatives’ responses are critical to the case. Listen as this panel of esteemed class action plaintiffs' lawyers shares strategies on how to best handle class representative discovery and avoid common issues that could present challenges at class certification. David Fernandes Attorney Baron & Budd Phong-Chau G. Nguyen Partner Lieff Cabraser Heimann & Bernstein Now On Demand! Recorded: 4/4/2023  90 Minutes What are the most difficult issues for plaintiffs to navigate during discovery? What protocols are the most important? What types of questioning techniques might be anticipated [...]

Read More

Insurance Coverage for Claims Alleging Breach of Preexisting Duty: Limitations on the Eaton Vance Rule

April 4th, 2023|Categories: Emerging Issues Webinars, Featured On-Demand, HB Tort Notes, New Webinars, Tort Litigation, Tort Webinars|Tags: , , , , , , , |

Insurance Coverage for Claims Alleging Breach of Preexisting Duty: Limitations on the Eaton Vance Rule Determining the Source of the Insureds Obligation to Pay an Underlying Claim Liability insurance covers, among other things, an insured’s legal obligation to pay damages to a third party arising out of a claim against the insured for breach of a duty owed to that third party. But what if the damages the insured becomes liable to pay – whether by settlement or court order after a judgment – constitute nothing more than amounts the insured already had a pre-existing contractual or statutory duty to pay, irrespective of whether any claim had been made alleging a breach? This latter category of damages is generally not covered by liability insurance because the insured’s obligation to pay does not result from the third-party “claim”; rather, it results from the pre-existing contractual or statutory obligation. The distinction between covered and non-covered damages for breach of a pre-existing duty is often difficult to see and even harder to explain coherently, for attorneys and judges alike. A significant body of confusing – and sometimes inaccurate, contradictory, and inartfully worded – case law has developed on these issues. Relying on these cases, it is now relatively common for insurers to look for every opportunity to disclaim indemnity coverage for any claim seeking damages based [...]

Read More

Environmental Litigation: Piercing the Corporate Veil, Alter Ego, and Successor Liability

April 1st, 2023|Categories: Emerging Issues Webinars, Featured On-Demand, HB Tort Notes, New Webinars, Tort Litigation, Tort Webinars|Tags: , , , , , , , |

Environmental Litigation Piercing the Corporate Veil, Alter Ego, and Successor Liability Environmental investigations and remediation expenses are costly. Private litigants and state and federal governments often seek viable "deep pocket" entities or high net worth individuals to pay for the cleanup costs allegedly attributable to an otherwise defunct or underfunded company's historical operations that caused the environmental contamination. In the typical scenario, the separate entity (parent company, shareholder, or successor in interest) does not own, lease, or operate the facility at issue, nor did it directly release a hazardous substance into the environment. And often, the former company was dissolved years ago and incorporated in an entirely separate state. Thus, the parent company, shareholder, or successor-in-interest is blindsided by the claims letter, lawsuit, or enforcement order--all of which require a strategic and accurate response. This type of indirect liability can be a real threat in any environmental litigation if pleaded correctly and supported by facts, and not met by a strong, well thought out and supported defense. As such, environmental litigators must be adept at using or defending against these theories of liability before they arise. Listen as our panel provides environmental litigators with an analysis of legal theories of alter ego and successor liability as they relate to environmental liabilities at cleanup sites and provides guidance on factors to consider and [...]

Read More
Go to Top