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 [...]

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“Years of Deception” Behind Consumer Privacy Violations Alleged

May 2nd, 2023|Categories: 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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Litigation Funding Battle Over Litigation Control

April 26th, 2023|Categories: 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: HB Risk Notes|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: 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 [...]

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Pixel Litigation the Latest Craze in Privacy Law

April 7th, 2023|Categories: HB Risk Notes|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: 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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European Court of Human Rights to Hear Case on Climate Change by Victoria Kline

April 7th, 2023|Categories: HB Risk Notes|Tags: , , , , , , , , , |

Guest Writer Victoria is a third-year student at the University of Miami School of Law, Juris Doctorate Candidate 2023, Law Review Staff Editor, and soon-to-be associate at Jones Day. European Court of Human Rights to Hear Case on Climate Change By Victoria Kline The European Court of Human Rights (ECHR) is hearing a landmark case brought forward by the Senior Women for Climate Protection Switzerland, who are suing the Swiss government (the “State”) for human rights violations related to climate change. Verein KlimaSeniorinnen Schweiz and others v. Switzerland (“KlimaSeniorinnen”) is one of the first climate change matters the court has taken up. On Wednesday, March 29, 2023, the ECHR held a public hearing. History of the Case KlimaSeniorinnen began back in 2016, ignited by a group of women called KlimaSeniorinnen Schweiz, the Senior Women for Climate Protection Switzerland. The group filed suit in Swiss court against a variety of Swiss federal government bodies alleging violations of obligations set forth in the Swiss Constitution and the European Convention on Human Rights (the “Convention”).  The heart of the suit is the State’s shortcomings in progress being made towards the adopted Paris Agreement’s goal to keep “the increase in the global average temperature to well below 2°C above pre-industrial levels.” The elderly plaintiffs purport that their demographic is especially [...]

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Greenhouse Gases Cited in Suit to Invalidate Drilling Leases

April 2nd, 2023|Categories: 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: 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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Government Involvement in Medical Decisions During Outbreaks with Bryce McColskey and Sandra Cianflone

March 28th, 2023|Categories: ELP, Emerging Litigation & Risk, HB Tort Notes, Podcasts|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 Emerging Law Notes, HB Tort Notes, Journal on Emerging Issues in Litigation, New Featured Post for Home Page, Tort Litigation|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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