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 Emerging Law Notes, HB Tort Notes, Journal on Emerging Issues in Litigation, New Featured Post for Home Page, Tort Litigation|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 [...]

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

June 14th, 2023|Categories: Emerging Litigation & Risk, Journal on Emerging Issues in Litigation, 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 [...]

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 [...]

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 [...]

“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 [...]

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 [...]

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 [...]

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, [...]

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 [...]

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 [...]

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 [...]

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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