USLAW-Magazine_FallWinter2018

F A L L | W I N T E R | 2 0 1 8 

ATTORNEY 

-CLIENT 

PRIVILEGE 

Is the Attorney-Client 

Privilege Under Attack? 

Accident Demonstrations in 

Product Liability Litigation 

pg20 

LOCKING THE 

PLAINTIFF IN 

pg28 

BEFORE 

YOU SEAL 

THE DEAL 

35 Million 

Reasons to Heed 

New SEC 

Guidance on 

Cybersecurity 

Disclosure 

Requirements 

pg 2 

Multiemployer Pension Plan Can 

Impact An Asset Purchase 

pg26 

MESSAGING 

APPS 

Don’t Let the Disappearing Act 

Catch You by Surprise in Discovery 

pg18

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© 2018

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From the Incoming Chair's Desk Page 1 

Table of 

Contents 

FEATURES: 

35 Million Reasons to Heed New SEC Guidance on Cybersecurity Disclosure Requirements 

By John McCauley, CIPP (US)(E) Bingham Greenebaum Doll LLP page 2 

It’s Not a Plane, Not a Bird, It’s a Drone! An Overview of the Insurance Issues Pertaining to Drones for Insurers 

Kent M. Bevan Dysart Taylor Cotter McMonigle & Montemore, PC page 4 

Risk Assessment in Estate Planning: Are You at High Risk of Having Conflict Amongst Your Loved Ones? 

Richard R. Marsh Flaherty Sensabaugh Bonasso PLLC page 6 

The May 25 GDPR Compliance Deadline Has Passed: What Does Enforcement Really Look Like? 

Batya F. Forsyth and Everett Monroe Hanson Bridgett LLP page 8 

Avoiding Tender Issues In Retail Leases and Service Contracts 

to Ensure Favorable Outcomes In Premises Liability Claims and Lawsuits 

Noble F. Allen and Diane Rojas Hinckley Allen page 12 

Addressing Pay Equity in the #ME TOO Era 

Julie Devine Lashly & Baer, P.C. page 14 

CAVEAT EMPTOR: You May Be Purchasing More Than Assets 

Jessica L. Bornes and Leslie Paul Machado LeClairRyan page 16 

Messaging Apps: Don’t Let the Disappearing Act Catch You by Surprise in Discovery 

Joy Allen Woller and Jared Sutton Lewis Roca Rothgerber Christie LLP page 18 

Is the Attorney-Client Privilege Under Attack? 

Heather L. Mills and Gina E. Och Murchison & Cumming LLP page 20 

A Long Way From “Guns That Don’t Shoot”: 

18 Proactive, Self-Defense Tactics Against the Ever-Expanding Application of the False Claims Act 

Robert H. Iseman Rivkin Radler LLP page 22 

The Evolution Of Structured Settlements 

Rachel D. Grant, CSSC Structured Financial Associates, Inc. • Andrew K. Fisher, CSSC Structures, Inc. page 24 

Before You Seal the Deal: How Multiemployer Pension Plan Withdrawal Liability Can Impact An Asset Purchase 

Beverly Alfon SmithAmundsen page 26 

Locking the Plaintiff In: Accident Demonstrations in Product Liability Litigation 

J. Michael Kunsch Sweeney & Sheehan, P.C. page 28 

Trying the Indemnity Case 

Mark S. Barrow and Ryan C. Holt Sweeny, Wingate & Barrow, P.A. page 30 

The Legalization of Recreational Cannabis in Canada: A Pan-Canadian Perspective 

Claudia Dubé and Marianne Bessette Therrien Couture L.L.P. page 32 

Balance Sheet Blues and Red Faces: UK Government Dithering on Immigration Laws Piles the Pressure on Business 

Julia Jackson Wedlake Bell LLP page 34 

What State Do You Live In? 

Oscar J. Cabanas Wicker, Smith, O’Hara, McCoy & Ford P.A. • David Wilck Rivkin Radler LLP page 36 

Doing Business in Canada? Understand its Employment Laws 

Alex Hunt Parlee McLaws LLP page 38 

DEPARTMENTS: 

Firms On the Move Page 42 

Faces of USLAW Page 44 

Pro Bono Spotlight Page 46 

Successful Recent USLAW Law Firm Verdicts / Transactions Page 48 

USLAW NETWORK SourceBook Page 54 

Spotlight on Corporate Partners Page 60 

LawMobile Page 10 

About USLAW Page 51 

2018 Membership Roster Page 53 

The articles contained herein are for informational purposes only and are not intended to be the basis for decisions in specific situations nor 

a substitute for legal counsel. Copyright © 2018 USLAW NETWORK, Inc. All rights reserved.

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F R O M T H E I N C O M I N G Chair’s Desk 

Publisher ROGER M. YAFFE 

Editor CONNIE WILSON 

Art Director JEFF FREIBERT • COMPASS CREATIVE 

z 

As the incoming Chair of USLAW, I am proud to 

share with you the fall 2018 issue of USLAW 

Magazine. The articles are written by USLAW member 

attorneys and corporate partners and touch upon 

important issues facing businesses and legal leaders across a range of 

industries. As you peruse these pages, you will note we focus on the 

EU’s General Data Protection Regulation, #metoo, cybersecurity, risk 

assessments in estate planning, accident demonstrations in product liability 

litigation, drones, the False Claims Act, legalization of recreational 

cannabis in Canada and so much more. 

USLAW Magazine is just one example of the many complimentary 

USLAW resources, products and services created to assist you with your 

day-to-day operation and management of cutting edge legal issues. 

Through USLAW LawMobile, we also offer customized programing 

to you and your team on a diverse variety of topics relevant to your business 

demands and industry. Via live and archived webinars, we provide 

programming across dozens of practice areas. And, by viewing or downloading 

the various USLAW Compendiums of Law and the Judicial 

Counties Profile, we deliver our home field advantage with our legal, 

legislative and jurisdictional knowledge. 

As I begin my term as Chair of USLAW NETWORK, I would like to extend 

thanks to my immediate predecessor, John Cromie of Connell 

Foley LLP in New Jersey, for his strategic guidance, friendship and leadership. 

I look forward to continuing his and the USLAW Board’s longstanding 

commitment to ensuring that USLAW delivers exceptional 

client service and industry-leading education and networking opportunities. 

USLAW was founded in 2001 to create a network of regionally based, 

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Magazine and thank you for your support. 

RENÉ MAURICIO ALVA 

EC Legal Rubio Villegas 

Mexico City, Mexico 

STANFORD P. FITTS 

Strong & Hanni, PC 

Salt Lake City UT 

AMANDA P. KETCHUM 

Dysart Taylor Cotter 

McMonigle & Montemore, 

PC, Kansas City, MO 

J. MICHAEL KUNSCH 

Sweeney & Sheehan, P.C. 

Philadelphia PA 

LISA LANGEVIN 

Kelly Santini LLP 

Ottawa, Ontario, Canada 

MALINDA S. MATLOCK 

Pierce Couch Hendrickson 

Baysinger & Green, L.L.P. 

Oklahoma City, OK 

BOARD OF DIRECTORS 

JOHN D. CROMIE, CHAIR 

Connell Foley LLP, Roseland, NJ 

KEVIN L. FRITZ, VICE CHAIR 

Lashly & Baer, P.C., St. Louis, MO 

JILL ROBB ACKERMAN, SECRETARY/TREASURER 

Baird Holm LLP, Omaha, NE 

NICHOLAS E. CHRISTIN, SPECIAL PROJECTS DIRECTOR 

Wicker Smith O'Hara McCoy & Ford P.A., Miami, FL 

DAN L. LONGO, LAW FIRM MANAGEMENT DIRECTOR 

Murchison & Cumming, LLP, Los Angeles, CA 

SUSAN CHILDERS NORTH, CLIENT LIAISON DIRECTOR 

LeClairRyan, Williamsburg, VA 

MICHAEL P. SHARP. ASSISTANT TREASURER 

Fee, Smith, Sharp & Vitullo, L.L.P., Dallas, TX 

KENNETH B. WINGATE, MEMBERSHIP MANAGEMENT DIRECTOR 

Sweeny, Wingate & Barrow, P.A., Columbia, SC 

LEW R. C. BRICKER, IMMEDIATE PAST CHAIR 

SmithAmundsen LLC, Chicago, IL 

THOMAS L. OLIVER, II, CHAIR EMERITUS 

Carr Allison, Birmingham, AL 

ROBERT S. NOBEL 

Traub Lieberman Straus & 

Shrewsberry LLP 

Hawthorne, NY 

PHILLIP H. STANFIELD 

Jones, Skelton & Hochuli, 

P.L.C., Phoenix, AZ 

THOMAS S. THORNTON, III 

Carr Allison 

Birmingham AL 

RODNEY L. UMBERGER 

Williams Kastner 

Seattle, WA 

RICHARD ISHAM, EX-OFFICIO 

MEMBER 

Wedlake Bell 

London, England 

Sincerely, 

Kevin L. Fritz 

USLAW NETWORK Incoming Chair 

Lashly & Baer, P.C | St. Louis, Missouri 

ROGER M. YAFFE, CHIEF EXECUTIVE OFFICER 

roger@uslaw.org, (800) 231-9110, ext. 1 

JENNIFER RANDALL, MEMBERSHIP SERVICES COORDINATOR 

jennifer@uslaw.org, (800) 231-9110, ext. 3 

CONNIE WILSON, COMMUNICATIONS SPECIALIST 

connie@uslaw.org, (800) 231-9110, ext. 4 

PAIGE THOMPSON, MEMBERSHIP SERVICES COORDINATOR 

paige@uslaw.org, (800) 231-9110, ext. 5 

3111 N. University Drive, Suite 400 

Coral Springs, FL 33065 • Phone/Fax 800.231.9110

2 www.uslaw.org U S L A W 

35 Million Reasons to 

Heed New SEC Guidance 

on Cybersecurity 

Disclosure 

Requirements 

By John McCauley Esq., CIPP (US)(E) Bingham Greenebaum Doll LLP 

The Securities and Exchange Commission 

has released new guidance (“Guidance”) 

to ensure public companies disclose cybersecurity 

incidents and risks to their investors. 

As evidence of its view of the importance of 

the Guidance, the SEC in April 2018 announced 

a $35 million settlement with 

Altaba, (formerly Yahoo), which waited two 

years to disclose a massive data breach in 

2014. 

In February 2018, the Securities and 

Exchange Commission (“Commission”) approved 

Interpretive Guidance to assist public 

companies in preparing disclosures 

about cybersecurity risks and incidents. The 

decision vote to approve the Guidance 

comes at a time when the significance of cybersecurity 

incidents is increasing. 

The Guidance outlines the Commission’s 

views with respect to cybersecurity disclosure 

requirements under the federal 

securities laws as they apply to public operating 

companies. 

WHY GIVE GUIDANCE? 

After the issuance of Guidance in 2011, 

the SEC found many companies included 

additional cybersecurity disclosure, typically 

in the form of risk factors. However, given 

the frequency, magnitude and costs associated 

with cybersecurity incidents to public 

companies, the SEC believes companies 

must take all required actions to inform investors 

about a material cybersecurity risk or 

incident in a timely manner. Companies 

that are the victim of a cyberattack or other 

cybersecurity incident often incur substantial 

costs, including remediation costs, increased 

cybersecurity protection costs, 

reputational harm, and litigation and legal 

risks, including regulatory actions by governmental 

authorities.


It is important to note that the 

Guidance outlined regarding disclosure 

also applies to companies that have not yet 

had an incident but may be at risk for a cyberattack. 

The Commission’s Interpretive Guidance 

focuses on two areas that were not addressed 

in the Division of Finance’s 

Guidance – 1) the importance of maintaining 

comprehensive policies and procedures 

related to cybersecurity risks and incidents; 

and 2) the application of insider trading 

prohibitions in the cybersecurity context. 

POLICIES AND PROCEDURES 

The SEC expects companies to disclose 

any cybersecurity risk or incident that is material 

to investors, including the concomitant 

financial, legal or reputational 

consequences. Companies will have to 

weigh the potential materiality of any identified 

risk, the importance of any compromised 

information and the impact of the 

incident on the company’s operations. 

Companies should also avoid a generic approach 

to completing the disclosure forms 

and provide specific information that is useful 

to investors. 

But this does not mean companies are 

to give a roadmap regarding their security 

plans, such as technical information about 

their cybersecurity efforts or other details 

that will make the company and its technology 

more susceptible to an incident. 

Companies have a duty to correct prior 

disclosures that the company later determines 

were untrue at the time they were 

made. Companies should consider whether 

they need to revisit or refresh any previous 

disclosures, including during the process of 

investigating a cybersecurity incident, in 

light of this new Guidance. 

In addition, the SEC encourages companies 

to adopt comprehensive policies and 

procedures related to cybersecurity disclosure. 

Compliance with these policies and 

procedures should be evaluated regularly. 

INSIDER TRADING 

Companies and their directors, officers 

and other corporate insiders are obligated 

to refrain from making selective disclosures 

of material nonpublic information about cybersecurity 

risks or incidents. They must be 

mindful of complying with the laws related 

to insider trading in connection with information 

about cybersecurity risks and incidents, 

including vulnerabilities and 

breaches. 

The SEC notes it is continuing to monitor 

cybersecurity disclosures carefully. 

In fact, in March 2018, the federal government 

filed criminal and civil charges 

against Jun Ying, a former chief information 

officer at Equifax Inc., over alleged insider 

trading linked to Equifax’s massive data 

breach in 2017. He is accused of using confidential 

information to conclude the company 

suffered a serious breach, and then 

sold his shares of the company before the 

breach was announced, making nearly $1 

million. 

By selling before the data breach was 

publicly disclosed, he avoided nearly 

$117,000 in losses, according to the SEC. It 

is the first time the U.S. government has 

charged someone with insider trading after 

allegedly profiting from information about 

a cyberattack. 

The Commission encourages companies 

to consider how their codes of ethics 

and insider trading policies take into account 

and prevent trading on the basis of 

material nonpublic information related to 

a cybersecurity risk or incident. It is prudent 

for companies to consider how to avoid the 

appearance of improper trading during the 

period following a cybersecurity incident 

and before information about the disclosure 

is disseminated. 

TAKE ACTION 

On April 24, 2018, the SEC announced 

the $35 million settlement with Altaba to resolve 

the Commission’s charges that Yahoo 

deceived investors by not disclosing a massive 

data breach in December 2014 to the 

investing public until 2016 when it was in 

the process of closing the acquisition of its 

operating business by Verizon Communications, 

Inc. Yahoo neither admitted nor denied 

the findings in the SEC’s order. 

The message from the SEC is clear – 

the Division of Finance will continue to 

carefully monitor cybersecurity disclosures 

as part of its selective filing reviews. Public 

companies should work with their legal and 

compliance teams to evaluate their controls 

and procedures regarding securities law disclosure 

obligations and how to avoid the appearance 

of improper insider trading 

during the time after a cybersecurity incident 

but before that information has been 

included in a disclosure. 

Bingham Greenebaum Doll 

LLP Partner John 

McCauley provides extensive 

advice on cybersecurity 

risks, incidents and policy 

issues, including proactive 

cyber incident readiness. As 

a Certified Information 

Privacy Professional, he assists clients in identifying, 

evaluating and managing risks associated 

with privacy and information security 

practices.


It’s Not a Plane, 

Not a Bird, It’s a Drone! 

AN OVERVIEW OF THE INSURANCE ISSUES 

PERTAINING TO DRONES FOR INSURERS 

Kent M. Bevan 

Dysart Taylor Cotter McMonigle & Montemore, PC 

Drones are everywhere, or at least they 

soon will be. The FAA estimates seven million 

drones will fly in U.S. skies by 2020, up 

from 2.5 million in 2016. In addition, 

Goldman Sachs estimates that the drone industry 

will grow to $100 billion by 2020. As 

drones become more prevalent in our society, 

so too will drone-related insurance issues, 

both for insurers and their insureds. 

This is a comprehensive overview of issues 

related to drone use by both insureds and 

insurers: 

DRONE USE BY INSUREDS 

The Federal Aviation Administration 

(FAA) classifies drones as being used for either 

recreational or commercial purposes 

and applies different regulations in each situation. 

Drones are also heavily regulated in 

a confusing hodgepodge of federal and state 

laws, and these regulations are constantly 

changing. Overall, 43 states have enacted or 

have pending legislation involving drones. 

Still, that leaves a few states with no laws at 

all that govern drones, and only 13 of those 

43 states have laws that govern intrusions 

into privacy involving the craft. 

In any case, however, drones present 

some of the same liability concerns: property 

damage, bodily harm or injury, and personal 

privacy issues that arise from a drone’s 

onboard cameras. In general, homeowner’s 

or renter’s insurance policies should address 

drones’ recreational usage and commercial 

general liability policies should address 

drones’ commercial usage. 

However, the problem is that policy 

language tends to be vague and often does 

not address drone-related issues specifically. 

This leaves both insurers and insureds exposed 

to liability when drone-related issues 

occur. This is a serious concern, as recent 

headlines suggest: One person was recently 

fined $55,000 by the FAA for violating aviation 

regulations when he flew his drone to 

take pictures of an event as a favor for a 

friend. A company was also recently fined 

$200,000 as part of a settlement with the 

FAA regarding their commercial drone operations. 

The solution for insurers to protect


both themselves and their insureds is to use 

policy language that specifically pertains to 

drones, either written into the policies 

themselves or added through endorsements. 

Insurers of recreational drone users 

should also add language which asserts that 

insureds need to follow FAA guidelines on 

recreational drone usage. These guidelines 

currently include: 

• Don't fly higher than 400 feet and stay 

clear of surrounding obstacles. 

• Keep the aircraft in sight at all times. 

• Stay away from manned aircraft operations. 

• Don't fly within five miles of an airport 

unless you contact the airport and control 

tower before flying. 

• Avoid flying near people or stadiums. 

• Don't fly an aircraft that weighs more 

than 55 pounds. 

• Use caution when flying your unmanned 

aircraft. 

Insurers should also define best practices 

for commercial drone operation in 

their policies based on FAA-mandated best 

practices in addition to all federal, state, 

and local laws and regulations. Some practical 

guidelines are: 

• A drone operator must be in full compliance 

with the FAA’s Part 107 guidelines 

and all applicable laws, including federal, 

local and state, which must be monitored 

for changes, while limiting any images to 

the specific claim or property at issue. 

• The operator and/or crew should complete 

a pre-flight checklist to evaluate any 

risks for each particular operation. 

• Detailed maintenance logs should be 

kept regarding each inspection and all 

maintenance performed. 

• Consider sending written/verbal notices 

to the surrounding property owners to 

the extent necessary for your drone use. 

• Your drone should be analyzed for any 

potential data security issues. 

• The drone operator should be wearing 

proper and professional attire, such as a 

helmet, safety glasses and a high-visibility 

safety vest. Warning or caution signs 

should be placed in the area. 

Another solution is for insurers to offer 

drone-specific policies. This trend is already 

starting to develop as one major insurer has 

an online application for drone coverage. 

Rates for drone insurance currently range 

from about $900 to $10,000 per drone per 

year. There are also reports of insurance 

providers insuring commercial drone companies 

for up to $500 million in liability and 

up to $10 million in hull damage. 

Furthermore, new services have developed 

that offer on-demand, or “episodic,” 

policies for recreational and commercial 

users for an hourly rate. One such company, 

called Verifly, offers such episodic policies 

for about $10 an hour. The policy covers a 

quarter-mile radius for up to $1 million of 

third-party liability and unintentional invasion 

of privacy. 

By using drone-specific policies and 

policy language, insurers will protect both 

themselves and their insureds from the potential 

liability that can arise from recreational 

and commercial drone usage. 

DRONES USE BY INSURERS 

Drones are also beginning to be used 

more often within the insurance industry itself. 

The reasons why include the fact that 

drones make insurance processes safer, 

more effective, and more efficient. In fact, 

the insurance industry could save as much 

as $6.8 billion per year by using remote-controlled 

drones. Some of the benefits that 

drone technology offers the insurance industry 

include: 

Safer, faster inspections – Otherwise 

dangerous or time-consuming inspections 

can be completed quickly and safely using 

drones. For example, inspecting a house for 

an insurance claim can take up to two hours 

or more, and a modestly sized office building 

can take four times as much time. Using 

a drone instead of manually inspecting a 

building can be 10 times faster and is much 

safer because the inspector’s feet remain 

firmly planted on the ground in the same 

spot for the entire inspection. 

In addition, drone inspections can reveal 

a larger amount of data than a manual 

inspection. For example, with a drone, data 

and photos can be collected that were never 

possible before, such as a video of the side 

of a building from seven stories up or a detailed 

photo of an entire roof. Drones can 

also use more sophisticated sensors, such as 

thermal cameras and lasers. 

Increased customer satisfaction and 

loyalty – A J.D. Power study found that claim 

processing time from claim to settlement 

was the single most important factor in determining 

homeowner insurance customer 

satisfaction. The faster a company can 

process a claim, the happier and more loyal 

their customers will be. Thus, drones can 

help insurers with this immensely. 

Fighting fraud – If an insured intends 

to use a recent event such as a storm to cover 

pre-existing damage, they can be undermined 

if their insurer uses drones to capture 

comprehensive images of their property before 

a damaging event takes place. 

1 

The Product Liability Risk Retention Act of 1981 initially created risk retention groups. The LRRA expanded the 

concept of risk retention groups to apply to commercial liability insurance. 

2 

1986 U.S.C.C.A.N. 5304 

Improved risk monitoring – Drones 

can be used to determine where risks exist 

before damaging events take place, such as 

floods or other natural disasters. This can 

help address these issues before they become 

a problem, thus saving money and 

perhaps even lives. 

Bespoke pricing and policy creation – 

Drones can be used to better assess risks 

that can’t otherwise be assessed as efficiently 

or effectively. This would help insurance 

companies calculate premiums and write 

policies that more closely reflect their insureds 

degree of risk. 

These benefits haven’t gone unnoticed 

in the insurance industry, and insurers are 

beginning to make drones a regular part of 

their business models. One major insurer 

has an academy that includes a 200,000 

square-foot facility where it trains nearly 

7,000 professionals a year on data-driven 

claim analysis including the use of drones. 

A reinsurance company has also begun to 

rent drones to its insurance company 

clients. There are also drone operations 

vendors who will contract with insurance 

companies. 

If you choose to use an outside vendor 

to conduct drone operations for your insurance 

company, then you should enter into 

a contract with them that requires compliance 

with all laws and best practices. It 

should also shift all risk to the vendor 

through a hold harmless agreement which 

ensures that company is made an additional 

insured under the insurance policy as evidenced 

by a Certificate of Insurance. 

As drones continue to proliferate, the 

insurance industry should approach them 

proactively with policies that specifically address 

drone-related issues in both recreational 

and commercial use. Insurers 

should also explore the benefits of using 

drones for their own operations as well. 

Kent M. Bevan is a shareholder/director 

at Dysart 

Taylor in Kansas City, 

Missouri. His practice focuses 

on insurance law and 

litigation. Kent regularly 

writes alerts with analyses of 

recent court decisions involving 

insurance litigation which you can view 

at https://www.dysarttaylor.com/newsevents/alerts. 

You can view his expanded bio at 

https://www.dysarttaylor.com/our-people/kentm-bevan 

or contact him at kbevan@dysarttaylor.com.


Risk Assessment 

in Estate Planning 

ARE YOU AT HIGH RISK OF HAVING CONFLICT 

AMONGST YOUR LOVED ONES? 

Richard R. Marsh Flaherty Sensabaugh Bonasso PLLC 

Families today come in all shapes and 

sizes. There are blended families with stepparents 

and stepchildren. There are elderly 

parents who need constant care. Children 

may live close by or across the country. 

People may never marry, staying single or 

simply cohabitating. These types of families 

may work while you are alive, but due to various 

reasons, they can be breeding grounds 

for conflict after you pass away. 

Estate planners have been adjusting accordingly. 

As the specter of estate taxes 

dims for most (the exemption is now $11.2 

million), estate planners can focus their attention 

on other areas, such as minimizing 

family conflict. At a recent national seminar 

on estate planning, 44% of the attendees 

surveyed stated that family conflict was 

currently their biggest concern. 

RISK CAN BE LOW, MEDIUM, OR HIGH 

AND IS HIGHLY DEPENDENT ON THE 

NUMBER OF CATEGORIES OF HEIRS, 

HOW DISPARATE THOSE CATEGORIES 

ARE, AND THE NUMBER OF HEIRS. 

Before you can minimize conflict, you 

must first assess the risk of potential conflict 

and whether it is low, medium, or high. 

Medium risk is hard to define; it is much 

easier to classify someone as low or highrisk. 

A low-risk individual generally has one 

or two natural heirs who do not have disparate 

interests. A high-risk individual will 

have two or more natural heirs who do have 

disparate interests. 

To do this, your first step is to determine 

the potential heirs and then categorize 

those who are similarly situated. A man 

with a wife and two children would have 

three potential heirs and two categories: 

spouse and children. The risk of conflict increases 

when there is more than one category 

of heirs. The disparity or conflicting 

interests of these categories is also important. 

For instance, joint children are likely 

okay with the spouse, i.e., their parent, receiving 

all of the assets. The same may not 

be true when your children are not also


your spouse’s children. 

The second assessment is the number 

of heirs. More heirs create a greater chance 

of unhappiness and discontent. This is true 

even if the estate plan treats all heirs 

equally. Siblings can hold grudges for years 

against one another and these grudges can 

create distrust. Personal property is also a 

battleground for dispute amongst heirs. 

Moreover, value may not be most important 

in these battles, but instead the idea of not 

getting “cheated” rules. For example, I was 

once involved in a case that arose because 

someone poured out a bottle of Jack 

Daniel’s. That case was not about value, but 

rather for reasons that are more personal. 

Building on that, the conflict arising 

from love of a parent can occur while the 

parent is alive. A new issue confronting estate 

planners is custody battles over the parent. 

Because a person may live for years in 

a reduced mental or physical state, someone 

has to care for them. This has led to an 

increase in children battling over the parent 

similarly to how divorcing parents battle 

over a child. Topping the list are disputes 

regarding whether to place the parent in a 

nursing home and whether one child is trying 

to take the money. 

OBJECTIVE OBSERVATIONS OF HEIRS 

CAN PREDICT CONFLICT, SUCH AS IF 

THEY ARE ESTRANGED, HAVE CON- 

FLICT WITH THIRD PARTIES, ARE MI- 

NORS, OR ARE DISTANT RELATIONS. 

The third risk assessment is consideration 

of the individual heirs themselves. This 

can be subjective by considering how likely 

you think it is that the heirs will cause conflict. 

Oftentimes, this is a waste of time because 

an individual can have a hard time 

truly discerning the potential for conflict 

due to rose-colored glasses. Instead, objective 

standards can be more useful, especially 

for identifying high-risk estates. For instance, 

do you have an estranged child? 

Such a child would be more likely to create 

conflict. 

Third parties also provide objective 

standards for evaluation of heirs. Medicaid 

and SSI are both needs-based government 

programs. Therefore, an heir receiving 

those benefits, such as a special needs child, 

will come into conflict with the government 

if the child receives an inheritance. One 

more example is an heir with creditor problems 

because a creditor could come after 

the heir’s inheritance. 

Age should also be considered. 

Leaving assets to a minor may create unforeseen 

problems, such as the sale or use 

of those assets. An additional problem is 

having someone manage the money on behalf 

of the minors. If you are a single parent, 

then that person may be the children’s 

other parent, which can be a frightening 

thought. 

This article has focused on spouses and 

children thus far, but another source of conflict 

is if you do not have a spouse, children, 

or parents. Normally in that situation, your 

estate would pass to your siblings. Then, if 

your siblings predecease you, it passes to 

their children. This can increase the number 

of heirs quickly and create disparate categories 

of heirs. I have had estates with 

thirty-plus heirs, many of whom do not 

know one another. With that many heirs, 

the potential for conflict is always high. 

In summary, to assess your risk for conflict, 

you need to consider the number of 

heirs, the categories of heirs, how distinct 

such categories are, how closely related 

those heirs are to you and one another, your 

relationship with the heirs, and whether the 

heirs have potential third-party conflicts. In 

my opinion, low risk is limited to those situations 

in which the assets are left to one or 

two similarly situated individuals. High risk 

includes any situation in which two or more 

disparate groups exist. High risk also includes 

the situations in which conflict is 

nearly guaranteed, such as with special 

needs individuals, heirs with creditor problems, 

or minor heirs. 

RISK CAN BE MANAGED THROUGH 

PROPER PLANNING BY UTILIZING A 

LAST WILL AND TESTAMENT, POW- 

ERS OF ATTORNEY, AND TRUSTS. 

Fortunately, if you assess your risk as 

high, you can manage that risk by creating 

three or four basic documents. First, your 

last will and testament will allow you to designate 

your heirs, thus eliminating additional 

or categories of heirs. Second, your 

durable power of attorney will designate an 

individual to manage your financial affairs 

if you are incapacitated. Third, in the same 

manner, your medical power of attorney will 

designate an individual to make medical decisions 

for you when you cannot. Finally, a 

living will sets forth your advanced directives 

regarding life-saving or prolonging 

measures. 

These four documents in their basic 

form can prevent or lessen conflict. The 

basic form documents can be prepared by 

most attorneys or through various websites. 

However, prudent individuals who assess 

themselves as having a high risk of conflict 

should seek out legal assistance to help 

them create better documents. Case in 

point, because personal property is often a 

source of conflict, the last will and testament 

can include provisions for the division 

of that property. Such a provision may be 

as simple as directing the beneficiaries to 

draw straws and then pick an item one at a 

time. As silly as it sounds, I have had beneficiaries 

become angry about the disposal of 

food. Because of this, my standard will now 

has a provision in it allowing the estate representative 

to throw away or donate the deceased’s 

food. Perhaps that would have 

prevented the Jack Daniel’s dispute. The 

goal with provisions is to take away decisions 

from the beneficiaries: fewer decisions lead 

to fewer arguments. 

Your powers of attorney can protect 

you from the conflict over your person 

while you are alive as well. For example, 

you can direct that home health aides 

should be hired or you should be placed in 

a nursing facility in certain situations, such 

as if you can no longer bathe yourself. In 

conjunction with such a directive, you can 

require your durable power of attorney to 

pay these bills as opposed to trying to save 

money. These types of provisions require 

careful thought but are important to reduce 

potential conflict. 

Finally, your estate plan can include 

other documents or provisions to reduce 

the risk of conflict with third parties. For 

the heir receiving Medicaid or SSI, you can 

designate that the heir’s inheritance passes 

to a special-needs trust. For a minor child 

or debt-riddled beneficiary, you can direct 

the minor’s inheritance to pass to a more 

traditional trust. In all three cases, a thirdparty, 

the trustee, manages the money on 

behalf of the heir. 

Right or wrong, families fight. They 

can fight even more when money or property 

is involved or when they have a venue 

in which they can wage their fight. By assessing 

the potential for conflict, you can 

take steps to prevent your heirs from engaging 

in these types of fights. We have all 

heard someone say, “Mom would be rolling 

over in her grave right now.” Fortunately, 

by assessing certain objective standards, an 

individual can prevent him or herself from 

being the subject of such statement. 

Richard Marsh is an attorney 

with Flaherty 

Sensabaugh Bonasso 

PLLC. He focuses his practice 

in the areas of trust 

and estate planning, administration 

and litigation; 

real property; general 

business representation; and bankruptcy and 

creditor representation. Richard may be reached 

at rmarsh@flahertylegal.com.


THE MAY 25 GDPR COMPLIANCE 

DEADLINE HAS PASSED 

What Does 

Enforcement 

Really Look 

Like? 

Batya F. Forsyth and Everett Monroe 

Hanson Bridgett LLP 

The European Union’s General Data 

Protection Regulation went into effect on 

May 25, 2018. While very high-profile complaints 

were lodged with some European 

Data Protection Authorities (DPAs), the 

agencies themselves have focused more on 

providing guidance for EU businesses, both 

as individual agencies and through their reconstituted 

body, the European Data 

Protection Board. As the DPAs plan meetings 

and continue to discuss key issues, enforcement 

has settled on the fundamentals 

of the regulation. A particular focus is being 

paid to those industries where companies 

regularly collect personal data on a large 

scale and those in a position to reveal intimate 

details about a data subject’s life. 

Meanwhile, non-EU organizations continue 

to struggle with whether and how GDPR applies 

to them, while DPAs prioritize providing 

guidance to businesses in the EU.


GDPR succeeds the now defunct Data 

Protection Directive that required EU member 

states to pass laws to control how personal 

data could be collected and used. The 

new regulation maintains much of the substance 

of the original directive, but substantially 

increases penalties for violations, seeks 

to improve uniform application of rules 

across the EU, and expands the territorial 

scope of the regulation to include non-EU 

businesses offering goods and services to 

EU data subjects or monitor the behavior of 

EU data subjects. 

GDPR has multiple avenues of enforcement. 

The long-established national DPAs 

are still empowered to bring actions in their 

member countries. Additionally, individuals 

may submit complaints to the DPAs to 

which the DPAs must review and respond. 

Individuals may also bring civil suits in EU 

member state courts for damages caused by 

GDPR violations. Injured parties may also 

assign their legal rights to a non-profit or 

civil society organization to bring suit collectively 

for a group of data subjects. 

Private consumer complaints from EU 

data subjects currently drive enforcement 

activities within the European Union. The 

non-profit organization noyb (an acronym 

of "none of your business") filed the most 

prominent of these complaints, alleging 

GDPR violations against Google, Facebook, 

and two of Facebook's subsidiaries, 

WhatsApp and Instagram. noyb's founder 

and chairman, Max Schrems, was the 

named party in the 2013 case Schrems v. 

Data Protection Commissioner that invalidated 

the EU-U.S. Safe Harbor legal framework 

that Facebook used to transfer 

personal data from the European Union to 

the United States. Then, when Facebook 

switched its compliance mechanisms for international 

data transfer to EU standard 

contract clauses, Schrems challenged the 

data transfers on that basis as well. 

The core of noyb's current complaints 

is about consent—namely, that consent obtained 

from data subjects for the use of 

their data is invalid because it is a pre-condition 

for using the service at all. At least at 

first glance, this would appear to be contrary 

to guidance from DPAs providing that 

consent for processing personal data cannot 

be tied to the provision of a service that 

does not require that processing to function. 

DPA-initiated enforcement actions 

against companies remain more limited in 

scope with a focus on ensuring the protection 

of data subject rights from serious or 

systemic harms. The Irish data protection 

commissioner has announced its office will 

prioritize enforcement towards large-scale 

data processing activities that constitute a 

high risk to data subjects. Sweden's DPA has 

sent out enquiries to organizations that collect 

and process more sensitive personal 

data, seeking to determine whether those 

organizations have appointed a data protection 

officer as the GDPR requires of companies 

handling large volumes of sensitive 

personal data. 

So far, other DPAs seem more intent 

on providing guidance for compliance 

rather than pursing enforcement. For example, 

the United Kingdom's Information 

Commissioner's Office has published extensively 

on compliance topics Collectively, 

DPAs have worked together through the 

new organizing body, the European Data 

Protection Board (EDPB). The EDPB replaces 

the Data Protection Directive's 

Article 29 working party, and has been 

granted more formal powers to address issues 

of GDPR interpretation with an eye toward 

uniformity and consistency. In its first 

meeting, the Board focused on revising and 

adopting its previous guidance from the 

Article 29 Working Party, and has issued 

new guidelines regarding exceptions applicable 

to international data transfers. 

DPAs, individually or collectively, have 

not focused attention on GDPR's expansion 

of territorial scope. GDPR expanded its territorial 

scope to include businesses outside 

the EU offering goods and services to EU 

persons, and monitoring the behavior of 

persons in the EU. Because these territorial 

scope provisions were not in the Data 

Protection Directive, there is little guidance 

on how DPAs plan to interpret that provision, 

and there has not yet been an attempt 

to bring an enforcement action against a 

company based on the new expanded 

scope. 

That uncertainty, combined with additional 

legal responsibilities for EU businesses 

to ensure adequate protections for 

personal data from their contractors and 

vendors has drawn the most attention in the 

United States. While there is reason to believe 

that GDPR's expanded scope is focused 

on preventing the tracking of a user's 

web browsing activities across websites, the 

letter of the regulation is written broadly 

enough to include even innocuous behaviors 

like keeping track of the items in a 

user's online shopping cart or remembering 

the preferences of a user on a customizable 

webpage. As a result, many U.S. businesses 

that may fall within that definition are taking 

incremental steps to comply with GDPR. 

In the alternative, some companies are implementing 

changes in order to avoid 

GDPR, either by disabling website technologies 

that could be considered "monitoring 

behavior," or by preventing EU users from 

accessing their services altogether. 

Many U.S. companies that were not 

necessarily concerned about GDPR’s direct 

application are now receiving compliance 

inquiries from their EU business partners. 

Some companies have been expected to accept 

additional addendums to their service 

agreements requiring them to ensure that 

they will also agree to respect the rights of 

data subjects whose data is in their care, requiring 

them to agree to auditing and cooperation 

with EU data protection 

authorities. Some U.S. contractors, in an effort 

to maintain some uniformity in commitments 

to their clients, have written their 

own forms that give effect to GDPR's contractual 

assurances requirements. 

While many organizations in the EU 

and the U.S. braced themselves for a wave 

of lawsuits and severe enforcement actions, 

it appears that serious enforcement has 

been limited to a small number of high-profile 

cases. While DPAs do appear to want to 

move companies towards compliance, it 

seems for now that their current strategy is 

much more focused on providing guidance 

and advice than it is on starting aggressive 

enforcement campaign. Ultimately, this 

gives all organizations that process personal 

data an additional opportunity to take a 

thoughtful approach to GDPR compliance 

before enforcement begins in earnest. 

Batya Forsyth is the chair of 

Hanson Bridgett's Litigation 

Section and co-chair of 

the Privacy, Data Security 

and Information Governance 

group. She is a 

Certified Information Privacy 

Professional (US) with the 

International Association of Privacy Professionals 

(IAPP.org). Batya counsels clients regarding privacy 

policies, compliance issues, data breach response 

and related insurance coverage issues, 

across multiple industries and jurisdictions. 

Everett Monroe’s litigation 

practice at Hanson Bridgett 

focuses on data privacy 

and intellectual property 

disputes and counseling, 

two areas in which his technical 

background as an 

electrical engineer join with 

his legal experience to serve clients in a range 

of complex matters. Everett is also an Adjunct 

Professor at the University of San Francisco, 

teaching Information Privacy Law.

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1 2 www.uslaw.org U S L A W 

AVOIDING 

TENDER ISSUES 

IN RETAIL LEASES 

AND SERVICE 

CONTRACTS TO 

ENSURE 

FAVORABLE 

OUTCOMES IN 

PREMISES 

LIABILITY 

CLAIMS AND 

LAWSUITS 

Noble F. Allen and Diane Rojas 

Hinckley Allen 

When a retail lease is being negotiated, 

counsel for the retailer does not typically 

focus on provisions regarding defense and 

indemnification of premises liability claims 

or lawsuits. (For purposes of this article, the 

term “premises liability” also includes negligent-security 

scenarios.) Rather, the focus 

is primarily on economic provisions such as 

rental escalations, common area maintenance 

(CAM) charges, default triggers, 

early termination provisions, exclusive use, 

and options to renew and/or purchase. We 

believe that the lack of attention to tender 

issues having premises liability implications 

is because in-house liability risk managers 

are seldom consulted during these negotiations. 

The intent of this article is to encourage 

top-level decision-makers within retail 

companies to consult with their risk managers 

early in lease negotiations so that 

these risk managers can provide valuable 

input from a premises liability perspective. 

This article will focus on the critical 

provisions in retail leases and service contracts 

(e.g., snow-plowing, landscape, and 

security) that defense counsel in premises 

liability litigation routinely encounter when 

reviewing leases and service contracts after 

the landlord submits a tender notice for defense 

and indemnification to the retail tenant. 

Unfortunately, the lease or contract 

would have already been in effect, so there 

is little that counsel can do other than to 

fashion creative interpretations of the lease 

(or contract) in an attempt to protect the 

retail tenant from liability without causing 

too much harm to the landlord-tenant business 

relationship. 

To be sure, a landlord's willingness to 

negotiate these critical lease provisions will 

often be dependent on the economic reputation 

of the tenant. However, as the saying

U S L A W www.uslaw.org 1 3 

goes, “You do not get, unless you ask.” So, 

when it comes to negotiating leases that will 

have far-reaching premises liability implications, 

retailers should always be prepared to 

ask the landlord for concessions in those 

areas. 

Here are five types of provisions involving 

retail leases and service contracts that 

are critical in determining whether the 

landlord will have a good-faith basis to tender 

a claim for defense and indemnification 

to the retail tenant, or whether the retail 

tenant will have sufficient legal grounds to 

reject that tender or to tender its own claim 

to a service contractor: 

1. Description of the Demised Premises. 

During lease negotiations, retail tenants 

must ensure that the “demised premises” 

are accurately described in a lease, which 

should always include exhibits that contain 

detailed and clear diagrams or 

schematics pinpointing the exact location 

of the demised premises (as distinct from 

other portions of the common areas that 

are deemed to be the landlord’s responsibility). 

If this is accurately described in 

the lease, then the question of which 

party would ultimately bear responsibility 

for an incident that occurred two or three 

feet from the entrance to the store is 

readily answered. Such a clear demarcation 

in the lease will facilitate a decision 

regarding which party should defend and 

indemnify the other if both parties are 

named as defendants in the lawsuit. 

2. Insurance / Liability & Indemnity. A lease 

might contain the following provision: 

“The Tenant covenants and agrees to 

hold Landlord harmless and to defend 

and indemnify Landlord from all claims 

brought by any third party arising out of 

the use of the Demised Premises.” Absent 

statutory prohibitions, most jurisdictions 

that have addressed exculpatory clauses 

will most likely determine that it is not 

against public policy to allow a landlord 

to contractually shift its own negligence 

to a tenant, provided it is expressly stated 

in the lease. For this reason, a retailer 

should not agree to hold harmless and to 

defend and/or indemnify the landlord 

for the landlord’s own negligence, wherever 

the incident occurred. To reflect this 

clear intent, the lease should expressly 

state that the landlord shall be held responsible 

for its own negligent conduct. 

3. Landlord’s Gross Negligence and/or 

Willful Conduct. Leases usually contain 

the following provision: “Tenant agrees to 

hold Landlord harmless from all claims 

except for actions due to Landlord’s gross 

negligence and/or willful acts or conduct.” 

This provision can be a trap because 

“gross negligence” and “willful 

conduct” are legal terms that carry much 

higher burdens of proof than does “negligence.” 

So, any provision in a lease that 

states that the landlord should be 

deemed liable only if its conduct is 

“grossly negligent or willful” should be 

stricken and replaced with a provision 

specifying the “negligence” standard. 

4. Responsibility for Common Areas. 

Common areas are the landlord’s domain. 

Among the many reasons why the 

tenant is paying common area maintenance 

(CAM) charges in a triple-net lease 

is to ensure that the tenant is protected 

by the landlord from any liability arising 

out of incidents that occur in areas that 

are shared in common with other tenants 

in the shopping center or property (i.e. 

parking, sidewalk, or walkway areas that 

are not part of the demised premises)— 

even for claims brought by the tenant’s 

patrons and/or business invitees. The 

lease should never contain any provision 

that exposes the tenant to liability for any 

incident that might occur in these common 

areas. The only exception is if the alleged 

injury or incident in the common 

area was directly caused by negligent conduct 

by the tenant or the tenant’s agents 

or employees. The lease should make it 

crystal clear that incidents that are not 

within the tenant’s demised premises are 

the responsibility of the landlord, aside 

from the above exception. If a tenant intends 

to hire security contractors, the 

lease should be clear about what specific 

area outside of the demised premises is 

deemed to be within the security contractor’s 

scope of surveillance, and which portions 

remain the landlord’s responsibility. 

5. Certificates of Insurance (COIs) and 

Indemnity in Service Contracts. Almost 

all retail leases (1) require the tenant to 

obtain certificates of insurance (COIs) 

naming the landlord and/or its affiliates 

as additional insureds under the tenant’s 

insurance policy, and (2) place the burden 

on the tenant to notify the landlord 

in the event of any changes and/or cancellation 

to the underlying commercial 

general liability policy. A retailer must 

take care in negotiating service contracts 

with any contractors, and ensure that 

these contracts place the contractors 

under the same obligations as listed 

above for the tenant. In the event that the 

retail tenant contracts with a snow removal, 

landscape, or security contractor, 

the contract must state that the contractor 

will agree to hold harmless, defend, 

and indemnify the retail tenant from any 

claims arising out of the contractor’s work 

or performance. Further, as is the case in 

retail leases, a COI naming the retail tenant 

and the landlord as additional insureds 

under the contractor’s policy 

(using the exact names of the tenant and 

landlord entities in the current lease) 

must also be attached to the service contract. 

To the extent that COIs are often 

renewed by insurers annually, the service 

contract should also state, for example, 

that the contractor must provide a copy 

of any renewals of COIs to the retail tenant 

“no later than five (5) days after renewal” 

and that the contractor and its 

insurer must immediately notify the retail 

tenant of any cancellation in the policy. 

Further, the service contract must state 

that failure to comply with these provisions 

will be considered a material breach 

of the contract, for which the contractor 

will be subject to monetary damages and 

attorney’s fees. 

One of the primary objectives between the 

landlord and retail tenant is to develop a 

symbiotic business relationship over the 

course of the lease term. Addressing tender 

issues in good faith during the lease negotiations 

will reduce future conflicts and help 

strengthen this business relationship. 

Noble F. Allen is a partner 

at Hinckley Allen. Noble’s 

litigation practice focuses in 

the areas of civil and business 

litigation, premises liability 

and insurance 

claims defense, and commercial 

landlord/tenant 

law, including commercial lease litigation and 

evictions. He regularly counsels retail developers, 

retailers, and other commercial landlords 

and tenants. 

Diane E. Rojas is an associate 

at Hinckley Allen. 

Diane’s practice focuses on 

general real estate law. Her 

experience includes assisting 

clients in the sale, acquisition, 

and financing of 

real property, as well as leasing 

for both tenants and landlords, including 

a recent acquisition of a large shopping center.


Addressing 

Pay Equity 

in the 

Era 

Julie Devine 

Lashly & Baer, P.C. 

We have all heard the horrific allegations 

from Hollywood which helped to 

spark the #metoo movement. Also from 

Hollywood, we are hearing news of more female 

actors insisting that they be paid as 

much as their male counterparts. These issues 

– pay disparity and workplace harassment 

- are clearly linked, and they must be 

addressed together. Although companies 

have long had anti-harassment policies and 

trainings and attempted to create pay systems 

that are fair and equitable, the news 

has reminded us we still have a long way to 

go on both fronts. And although federal 

law has long outlawed sex-based wage discrimination 

in the workplace, there is still a 

gap between the money earned by men and 

women. A woman, on average, earns 

around 80 cents for every dollar a man 

makes (with an even wider gap for African- 

American and Hispanic women). There is 

also income inequality among races. White 

men out-earn African-American and 

Hispanic men and all groups of women. 

Although the #metoo movement has 

led many companies to address their antiharassment 

policies and procedures, a specific 

pay equity plan is often missing from 

their plans. As outlined below, there are 

many reasons that tackling pay equity 

should be a key part of your plans to address 

workplace issues raised by the #metoo 

movement. 

THE CONNECTIONS BETWEEN 

#METOO AND PAY EQUITY 

Harassment certainly contributes to 

pay disparities. Individuals who have experienced 

workplace harassment are sometimes 

sidelined or blacklisted, terminated 

for complaining, prevented from seeking 

promotions, or they have resigned or taken 

less profitable positions to escape a harassing 

workplace. This can all lead to or contribute 

to pay disparities. 

Pay disparities, moreover, may contribute 

to harassment. One thing that 

seems common across industries and different 

types of workplaces is that the abuse of 

power plays a role in sexual and other types 

of harassment. Power in the workplace is 

often defined by money (the owner, rainmaker, 

top salesperson, or creative genius 

who brings in customers). Pay disparities 

often mean that women and minorities 

have less power in the workplace. 

Therefore, closing the wage gap may decrease 

the power differential, and thus decrease 

incidents of harassment. Decreasing 

the pay gap may also lead to more diverse 

managers and leaders who may be able to 

change the workplace culture and may take 

a fresh look at enforcement and investigation 

of harassment claims. 

Current lawsuits demonstrate how 

much harassment and pay equity issues are 

intertwined. There are an increasing 

amount of lawsuits, including class-action 

claims, involving both pay equity and harassment/discrimination 

claims. These claims 

together can be more serious than when 

viewed alone. For example, a company may 

be able to justify a pay gap based on an objective 

factor. Once there are allegations of 

sexist attitudes or comments in the workplace, 

however, these wage gaps may appear 

more nefarious. Similarly, it may be possible 

to claim that a few inappropriate com-


ments were not severe or pervasive in the 

context of a harassment claim, or that they 

were properly addressed by management, 

but these statements could be interpreted 

as more concerning if there is a seemingly 

unfair pay gap between the parties, with no 

evidence of efforts to improve the pay disparities. 

Increasingly, plaintiffs are also claiming 

that a failure to address pay equity concerns 

or conduct a pay equity audit (as described 

below) is itself a form of discrimination, and 

that a request for such actions is a protected 

activity under state and federal anti-discrimination 

laws. This has led to an increase in 

retaliation claims related to expressing pay 

equity concerns, which like many retaliation 

claims, can be difficult to defend. 

CURRENT TRENDS IN PAY EQUITY 

LAWS 

Although there is a persistent pay gap 

in this country, there has been a federal pay 

equity law for over 50 years. President 

Kennedy signed the Equal Pay Act of 1963, 

which is part of the Fair Labor Standards 

Act. It prohibits sex-based wage discrimination 

in the workplace if employees are performing 

jobs that require substantially equal 

skill, effort, and responsibility under similar 

working conditions. The Equal Pay Act has 

never required that individuals with the 

same job title be paid the same, but any pay 

differential must be based on neutral criteria, 

such as experience, number of employees 

managed, or a day/night differential. 

Recently, the Ninth Circuit (covering 

the west coast), held that prior salary alone 

or in combination with other factors cannot 

justify a wage differential between male and 

female employees under the Equal Pay Act. 

Rizo v. Yovino, 887 F.3d 453, 456 (9th Cir. 

2018). This is the first time a Circuit Court 

has held that prior salary – even in combination 

with other factors – cannot be used 

to justify a pay gap. In the Seventh and 

Eighth Circuits, the Courts have held that a 

difference in pay based on the prior pay is 

a legitimate factor other than sex under the 

Equal Pay Act. Lauderdale v. Illinois Dep't of 

Human Servs., 876 F.3d 904, 908 (7th Cir. 

2017); Taylor v. White, 321 F.3d 710, 720 (8th 

Cir. 2003). In the Tenth and Eleventh 

Circuits, the Courts found that an employer 

cannot rely solely on a prior salary to justify 

a pay disparity. Riser v. QEP Energy, 776 F.3d 

1191, 1199 (10th Cir. 2015); Glenn v. Gen. 

Motors Corp., 841 F.2d 1567, 1571 (11th Cir. 

1988). Although the federal circuit courts 

do not agree on this issue, companies with 

operations in the Ninth Circuit must be 

aware of this expansive interpretation of the 

Equal Pay Act. Given the Circuit split, 

moreover, this may be an issue eventually 

decided by the Supreme Court. 

In addition to changing interpretations 

of federal law, multiple states and municipalities 

have been enacting or broadening 

their pay equity laws, including California, 

Massachusetts, New York City, Maryland, 

Delaware, San Francisco, Oregon, Puerto 

Rico, and Nebraska. A majority of these 

laws address pay transparency and prohibit 

or restrict companies from seeking prior 

salary information from applicants. These 

laws address common and sometimes longheld 

practices in companies, and apply even 

if there is no evidence the company has pay 

disparity problems. Many other states and 

localities also have pay equity bills working 

their way through the legislatures. 

ADDRESSING PAY DISPARITIES 

Although we have long known about 

pay disparities, there are still a lot of unknowns 

regarding pay equity. We do not 

know exactly how harassment and pay equity 

are linked, how new state laws will affect 

pay disparities, and whether the Supreme 

Court will weigh in on interpretations of the 

Equal Pay Act. Even with these uncertainties, 

companies should address pay disparity 

concerns by conducting pay equity audits 

and implementing new policies and procedures 

regarding compensation. 

Pay Equity Audits Conducting a pay equity 

audit is one step a company can take to 

determine if there are improper pay disparities 

and analyze how to address them. We 

recommend conducting these audits with 

counsel, who can assist with the analysis and 

suggested remedies through privileged conversations. 

In addition, it is often helpful to 

align the timing of the audit and its results 

with your company’s compensation cycle, so 

that you can address any compensation 

changes at a logical time. We are also finding 

that a one-time audit and any accompanying 

revisions to employee compensation 

are sometimes not sufficient. Particularly 

for a company that is growing due to a number 

of new hires, or gaining new employees 

though the acquisition of other companies, 

conducting routine audits will be needed to 

ensure that progress toward pay equity continues. 

Policy Changes In addition to conducting 

pay equity audits, below are some of the concrete 

steps that companies are taking (sometimes 

prompted by new state and local laws) 

to avoid improper pay disparities: 

• Prohibit prior salary inquiries; 

• Set job salaries based on objective criteria 

(and don’t make exceptions); 

• Prohibit salary negotiations; 

• Analyze who has authority to make decisions 

(is this a diverse group? Is it too centralized/decentralized?); 

• Increase transparency about pay decisions 

and factors; and 

• Review current employee evaluation systems, 

and determine if the measurements 

contribute to disparities in compensation 

decisions. 

In addition to these steps, pay equity 

should be considered a part of your company’s 

overall equal employment opportunity 

programs. An employee’s pay is the 

primary way a company communicates to 

an employee his or her value at the company. 

Addressing pay equity shows that you 

are properly evaluating that employee’s 

worth. If companies can take the tangible 

step of increasing an employee’s pay, or 

even making compensation decisions and 

processes more transparent and fair, it also 

provides a tangible example of your commitment 

to anti-harassment policies and a 

workplace culture supportive of all employees. 

Among employees, there are increasing 

doubts about the efficacy of long-used 

programs to address workplace harassment 

and discrimination (like anti-harassment 

trainings). Addressing pay equity is a concrete 

way to demonstrate your commitment 

to ensuring a workplace free of discrimination 

and harassment. 

Julie Devine, an attorney 

with Lashly & Baer, P.C. 

in St. Louis, has successfully 

defended employers in 

state and federal court and 

government investigations 

involving claims for discrimination, 

harassment, 

and retaliation, as well as wage/hour issues 

and FMLA claims. Julie also regularly provides 

advice and counseling to employers about 

an array of compliance issues.


CAVEAT EMPTOR: 

You May Be 

Purchasing More 

Than Assets 

Jessica L. Bornes and Leslie Paul Machado 

LeClairRyan 

Congratulations. Your company recently 

completed purchasing the assets of 

another company and now you are looking 

forward to an increased bottom line from 

efficiencies of scale. Then, weeks, months 

or even years after the deal closes, your 

company is named as a defendant in an employment 

suit. The suit alleges the former 

company – whose assets your company purchased 

– discriminated or retaliated against 

its employee. Because that former company 

no longer exists, the plaintiff is now seeking 

to hold your company liable. 

But wait, you argue. Your company simply 

purchased the other company’s assets – 

not its liabilities. Moreover, you never had 

any notice about this claim during the due 

diligence process. In fact, you took specific 

steps to make sure your company was not liable 

for any debts or obligations of the prior 

company. How can your company be held 

liable for the prior company’s conduct 

under these facts? 

Unfortunately, as some companies 

have discovered, they can be held liable 

under these very facts. Here’s why, and how 

to avoid this outcome. 

PURCHASER LIABILITY: 

THE GENERAL RULE 

The general rule in corporate law is a 

purchaser of a corporation’s assets is not liable 

for the predecessor’s debt or liabilities, 

with three exceptions: (1) where there is an 

express or implied agreement; (2) where 

the successor is a mere continuation of the 

predecessor; or (3) where the transaction is 

an attempt to escape liability. 

As such, in the scenario outlined 

above, unless your company entered into an 

express or implied agreement that requires 

it to provide relief for the employment-related 

claims of the predecessor corporation, 

your company is simply a continuation of 

the predecessor corporation, or the entire 

transaction is a sham to avoid liability, the 

general rule provides that your company 

should have no liability for the alleged bad 

acts of the prior company. 

THE EMPLOYMENT EXCEPTION 

In at least five of the circuits, however, 

the general rule now potentially has a 

fourth exception: for claims of employment 

discrimination or retaliation. For such employment-related 

claims, courts in the 

Fourth, Fifth, Sixth, Seventh and Tenth 

Circuits have relaxed the general rule and 

imposed liability on a company that simply 

purchases the assets of the prior company. 

These courts have reasoned that “fairness” 

allows imposing liability on the purchasing 

entity, in order to further the goal of remedying 

unfair employment practices and addressing 

the helplessness of the victim to 

protect his or her rights when ownership of 

the business changes. For courts in these 

circuits, a purchasing company can be held 

liable for the prior company’s bad acts. 

In deciding whether to impose liability 

on the purchasing company, these courts have 

considered a variety of factors, including: 

• Whether the successor had notice of the 

EEOC charge; 

• The predecessor’s ability to provide relief;


• Whether there has been substantial continuity 

of business operations; 

• Whether the successor uses the same facility; 

• Whether the successor uses the same or 

substantially the same work force; 

• Whether the successor uses the same or 

substantially the same supervisory personnel; 

• Whether the same jobs exist under substantially 

the same working conditions; 

• Whether the successor uses the same machinery, 

equipment, and methods of production; 

and 

• Whether the successor produces the 

same product. 

Distilled to their essence, these courts 

focus on (1) whether the purchasing company 

had notice about the charge or claim; 

(2) the predecessor’s ability to provide relief; 

and (3) continuity of the business. 

If the purchasing entity has notice 

about the charge or conduct, then, the 

courts reason, it could have (and should 

have) taken steps to protect itself in the purchase 

agreement. As such, when there is evidence 

the purchasing company had notice, 

this fact will weigh heavily in the court’s 

analysis. 

The absence of notice, however, is not 

dispositive. At least one court held that, 

even where there was no evidence the purchaser 

had notice about the EEOC charge, 

it could still be held liable because of its lack 

of diligence in making an inquiry prior to 

purchase or in failing to provide for indemnification 

of any undiscovered claims. 

Next, if the predecessor company remains 

a viable entity, or if it has resources 

that respond to the charge or suit (e.g., an 

insurance policy), then the court is going to 

be more reluctant to impose liability on the 

innocent purchaser, because holding the 

purchaser liable would not serve the policy 

underlying the doctrine. On the other 

hand, if the prior company cannot provide 

relief, a court is much more likely to look to 

the purchaser as the only available pocket. 

Finally, the more indicia of continuation of 

operations, the more likely a court will feel 

comfortable in imposing liability on the 

purchaser. 

A recent case from Maryland shows 

how these factors play out. In EEOC v. Phase 

2 Investments, Inc., 1 the EEOC began investigating 

a car wash (Maritime), after several 

employees claimed they were unlawfully terminated. 

While that investigation was underway, 

another company (Mister) agreed 

to purchase Maritime’s assets for $15 million. 

In addition to investigating Maritime’s 

potential liabilities as part of its due diligence 

process, Mister purchased only 

Maritime’s assets, the asset purchase agreement 

made clear Mister was not liable for 

any liabilities beyond those listed in a schedule, 

and Maritime agreed to indemnify 

Mister. After the transaction closed, Mister 

transitioned away from Maritime’s trademark, 

website, and social media presence. 

Mister, however, hired many of Maritime’s 

employees, and continued operating the 

car washes. 

More than 2½ years after the transaction 

closed, the EEOC sued Mister, alleging 

it was liable for Maritime’s misconduct. 

Mister moved to dismiss the complaint or 

for summary judgment. The court denied 

the motion. It explained that it needed to 

“balance the needs of discriminatees and 

the national policy against discrimination 

evinced by Title VII against the unfairness 

of holding an innocent purchaser liable for 

another’s misdeed and the possible chilling 

of the corporate market.” 

After reviewing the transaction, the 

Phase 2 Investments court held it was “equitable” 

to hold Mister liable for any liability 

that Maritime may incur in the case because: 

(1) Mister had some notice of the EEOC 

charges prior to purchasing Maritime’s assets; 

(2) although Maritime might not have 

been insolvent, and there was apparently 

available insurance coverage, the EEOC was 

seeking injunctive relief, which could not be 

obtained from Maritime; and (3) Mister was 

running substantially the same business; 

using the same facility; using much of the 

same workforce, machinery, equipment and 

methods of production; and producing the 

same product (car washes). 

Perversely, the court held that “the 

lengths to which Mister went to protect itself 

from liability, such as structuring the 

sale as an asset purchase, inquiring into 

Maritime’s liabilities, listing the assumed liabilities 

in a schedule, and including an indemnification 

clause, actually demonstrates 

the fairness of holding Mister liable as a successor.” 

As explained above, in a different 

case, another court held that a purchaser’s 

lack of diligence in making an inquiry prior 

to purchase, or in failing to provide for indemnification 

of any undiscovered claims, 

warranted imposing liability. 

HOW TO AVOID THIS PITFALL 

Successor liability in the context of employment 

discrimination claims is determined 

on a case-by-case basis, so there is no 

bright-line rule regarding what a purchaser 

of corporate assets must do to avoid potential 

liability. As gleaned from the cases, however, 

it is clear a purchaser needs to take 

every step to protect itself before, during, 

and after the transaction by: 

• inquiring about any pending employment-related 

claims, charges, or demand 

letters lodged or threatened against the 

predecessor organization; 

• inquiring about employment-related internal 

investigations or complaints; 

• making sure any actual, threatened or potential 

claims, charges or demands are 

fully addressed in the asset purchase 

agreement; 

• adding a provision in the asset purchase 

agreement requiring the seller to indemnify 

the purchaser against any employment-related 

claims that arise after 

closing, even if not previously disclosed 

or even known; and 

• not engaging in conduct that could be 

construed as a continuation of the prior 

business, as much as possible. 

To be clear, as the Phase 2 Investments 

decision shows, even taking these steps 

might not protect your company against a 

claim. But it puts you in the best position to 

respond to that claim. 

If your company has completed its purchase 

and is then sued, make every effort to 

show the predecessor organization remains 

solvent, so that it is not necessary to look to 

your company to make the victim whole. 

Although the predecessor’s solvency might 

not be dispositive if the plaintiff is seeking 

injunctive relief, it is certainly critical if 

money damages are at issue. 

At the end, as the courts repeatedly 

state, each case is fact-dependent and turns 

on issues of “fairness.” As such, the prudent 

purchaser should do everything to make 

sure the fairest outcome is one where the 

plaintiff, and the Court, looks elsewhere. 

1 

EEOC v. Phase 2 Investments, Inc., No. JKB-17-2463, 

2018 WL 1851480 (D. Md. Apr. 18, 2018). 

Jessica L. Bornes is an associate 

in the Alexandria, 

Virginia, office LeClairRyan, 

PLLC where she practices 

in a variety of substantive 

areas. 

Leslie Paul Machado is a 

partner in the same office 

where his practice includes 

employment counseling and 

litigation.


Messaging Apps 

DON’T LET THE DISAPPEARING ACT 

CATCH YOU BY SURPRISE IN DISCOVERY 

Joy Allen Woller and Jared Sutton 

Lewis Roca Rothgerber Christie LLP 

Slack. Jabber. Google Hangouts. Wickr. 

Confide. Messaging apps are no longer the 

future of eDiscovery, they are the present. 

Although these chat-style software programs 

and mobile messaging apps provide convenience 

for day-to-day business, they can present 

significant challenges in litigation. A 

party who is in litigation, or who reasonably 

anticipates being in litigation, is obligated 

to preserve relevant electronic evidence. 

But what does that mean for a business that 

utilizes an enterprise-wide chat function or 

other forms of messaging? Are employees 

permitted to use “disappearing” ephemeral 

messaging apps to communicate after a litigation 

hold is in place? Can they only use 

systems that can be configured to prevent a 

message from being completely deleted? By 

and large, these questions remain unanswered, 

but understanding the rules framework 

will lead us toward some of these 

answers—and is the first step to preventing 

the data disappearing act from catching you 

by surprise. 

ARE MESSAGING APPS SUBJECT TO 

DISCOVERY? 

In litigation, a party is entitled to discover 

electronically stored information 

(“ESI”) that is relevant to a claim or defense 

and proportional to the needs of the case, 

considering the burden to the party producing 

it and the value of the information. 

There is still some debate about whether 

certain types of “disappearing” messages fall 

into this scope of discovery because some 

apps are designed specifically to prevent the 

messages from being stored. Even so, if a 

particular messaging app “journals” chats or 

otherwise logs them, chances are high they 

will be considered ESI and subject to discovery. 

Early case assessment involves searching 

for the ESI that exists in many different 

places. Because litigators typically focus on 

email and other documents, it can be easy 

to overlook chat messages as a source of potential 

discovery. As you begin your initial 

case investigation, remember to ask key witnesses 

if they use chat-style applications. 

Likewise, ask opposing counsel about chat 

and other ephemeral messages during the 

court-mandated discovery conference. 

Failing to do so could mean losing an important 

source of relevant information. 

Assuming your company or your client 

uses a messaging platform, what happens 

next? You will want to ask at least three critical 

questions: (1) Are the chat messages 

likely to contain information relevant to the 

case?; (2) Are they fixed in some medium 

that will allow them to be preserved and collected?; 

and (3) How burdensome will 

preservation and collection be? 

IF I HAVE MESSAGES, DO I HAVE TO 

PRESERVE AND PRODUCE THEM? 

Chat messages present unique preservation 

challenges. You will therefore need 

to find out very early in your investigation 

how your particular platform works. For example, 

does it “journal” or save a copy of all 

messages and, if so, for how long? Some systems 

delete virtually instantaneously, while 

others allow perpetual preservation. Can


the preservation function be turned on or 

off and, if so, was it functioning during the 

relevant time period? Finally, does the software 

allow individual users to store their 

own “chat history” and if so, did they? For 

example, GSuite’s Google Hangouts offers 

users the ability for individual users to store 

their personal chat history in their Gmail account, 

but also permits GSuite administrators 

to turn the function off. 1 

Without understanding how these platforms 

work, it may look like messages have 

“disappeared,” when copies are stored elsewhere. 

It is therefore important to talk to 

the administering IT department or service 

provider to understand the particular program 

and determine whether relevant messages 

have been preserved. 

After you have determined that relevant 

text messages were created and kept, 

the next step is to consider whether it will 

be unduly burdensome to collect and produce 

them. Under the Federal Rules of 

Civil Procedure, you may have at least two 

objections to producing chat or similar messages, 

even if you know they exist and believe 

they might be relevant. The scope of 

discovery is limited by proportionality factors, 

including the amount in controversy 

in the case, the importance of the discovery 

in resolving the issue, and whether the burden 

or expense of the proposed discovery 

outweighs its likely benefit. 2 In addition, a 

party is generally not required to produce 

ESI that it identifies as “not reasonably accessible” 

due to undue burden or cost. 3 You 

may not be required to produce the messages 

if you can establish that the collection 

and production of text messages would 

cause an undue burden – either because 

the information will have relatively little 

value or because collecting them would be 

incredibly expensive, or both. 

For example, messages that can only be 

recovered by a forensic expert (e.g., because 

they are “deleted” or saved only in 

“unallocated” space on a computer hard 

drive) may be too expensive to collect if 

they have limited value in the case. 

Collection may also require expensive company-wide 

preservation on systems that cannot 

be controlled on a user-by-user basis. In 

this case, the courts may find that a wide 

sweep is unduly burdensome depending on 

the circumstances. 

It is important to be prepared to articulate, 

with specificity, the burden you anticipate. 

Your argument should not simply 

assume all messages are always difficult to 

preserve and produce. In fact, some commonly 

used platforms offer eDiscovery capabilities 

for preservation of chat messages. 

One such platform is Office 365, which 

claims its eDiscovery capabilities include the 

ability to export preserved chat messages in 

Excel and other formats. 4 

CAN I KEEP USING “DISAPPEARING” 

MESSAGES? 

A growing number of messaging applications 

(such as Snapchat, Threema, and 

Confide), by design, do not keep messages 

in a fixed form. Often referred to as 

“ephemeral messaging apps” or “EMAs,” 

these products typically offer encrypted, selfdestructing 

messages that give users privacy 

and an opportunity to “chat off the record.” 

But what happens when a litigation hold is 

in place? May an individual or company use, 

or continue to use, these confidential apps 

to discuss matters relevant to the case, knowing 

the messages may be lost forever? 

Ephemeral data is typically defined as 

“data that exists for a very brief, temporary 

period and is transitory in nature, such as 

data stored in RAM.” 5 A number of thought 

leaders have suggested that certain types of 

ESI, such as “ephemeral” data, are presumptively 

“not reasonably accessible” and need 

not be produced in litigation. 6 The 7th 

Circuit’s Electronic Discovery Pilot 

Program, for example, lists several categories 

of ESI, including “ephemeral data” 

that are generally not discoverable in most 

cases. 7 Yet, some courts have held that other 

forms of automatically “deleted” data (including 

overwritten server logs and 

Random Access Memory) are not necessarily 

off-limits in discovery. 8 

These cases did not address the new 

ephemeral messaging apps so there is an argument 

that those apps are qualitatively different, 

and thus, not subject to 

preservation. If two people send messages 

to one another on Threema, for example, 

knowing that the messages will be immediately 

and permanently destroyed after they 

are sent, is that substantively different than 

a face-to-face conversation that is not subject 

to production? Much like an oral conversation, 

those messages can be explored 

in deposition with all of the limitations inherent 

in backward-looking questioning. 

But if the data was essentially never “stored” 

should it be subject to production? 

A recent case involving Uber and a subsidiary 

of Google’s parent company began 

addressing these questions, but didn’t fully 

resolve them. In Waymo LLC. Uber 

Technologies, Inc., 9 Waymo accused Uber of 

misappropriating trade secrets concerning 

self-driving vehicles. Among a number of 

discovery disputes, Waymo claimed that 

Uber’s use of an EMA called Wickr while litigation 

was pending was spoliation of evidence. 

Regrettably, the court did not 

resolve the question of whether use of an 

EMA is permissible after a litigation hold is 

in place. The court did, however, note that 

Uber’s use of ephemeral communications 

“is also relevant as a possible explanation for 

why Waymo has failed to turn up more evidence 

of [trade secret] misappropriation” 

and ordered that Waymo would be permitted 

to present evidence and argument 

about Uber’s use of EMAs. Uber would likewise 

be able to present evidence that use of 

the EMA showed no wrongdoing. Although 

the Court did not prohibit the post-litigation 

use of EMAs, it certainly signaled that 

parties do so at their own risk. 

GET THE ANSWERS BY ENGAGING 

THE RIGHT TEAM. 

As more corporations and individuals 

employ these platforms and collaborative 

tools, we will see them more often at issue 

in litigation. To navigate this frequently 

changing landscape, it will be critical to engage 

competent counsel and technical assistance 

to ensure compliance with discovery 

obligations. 

1 

https://support.google.com/a/answer/34169?hl=en 

2 

Fed.R.Civ.P. 26(b)(1). 

3 

Fed.R.Civ.P. 26(b)(2)(b). 

4 

https://docs.microsoft.com/en-us/MicrosoftTeams/security-compliance-overview#ediscovery; 

https://docs.microsoft.com/en-us/microsoftteams/ediscovery-investigat 

ion. 

5 

The Sedona Conference, Sedona Conference 

Glossary: E-Discovery and Digital Information 

Management (4th Ed.) (2014) (available at 

https://thesedonaconference.org). 

6 

Fed.R.Civ.P. 26(b)(2)(b). 

7 

https://www.discoverypilot.com/ 

8 

Columbia Pictures, Indus. v. Bunnell, No. CV 06- 

1093FMCJCX, 2007 WL 2080419 (C.D. Cal.); MAI 

Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 518- 

19 (9th Cir. 1993). 

9 

No. C 17-00939 WHA, 2018 WL 646701, *21 (N.D. 

Cal). 

As the firm's eDiscovery 

partner, Joy Woller is an 

ESI specialist. She addresses 

complex discovery issues 

and counsels her clients regarding 

eDiscovery resources 

and best practices. 

Joy represents clients in commercial 

disputes, intellectual property litigation, 

and in trademark disputes before the U.S. 

Patent and Trademark Office. 

Jared Sutton is a commercial 

litigator at Lewis Roca 

Rothgerber Christie LLP. 

As a member of the firm’s 

Litigation Support and 

eDiscovery team, Jared advises 

firm clients, lawyers, 

and staff on a wide range 

of eDiscovery issues.

2 0 w w w . u s l a w . o r g U S L A W 

IS THE 

ATTORNEY- 

CLIENT 

PRIVILEGE 

UNDER 

ATTACK? 

Heather L. Mills and Gina E. Och 

Murchison & Cumming LLP 

In light of the recent issues under the 

Trump administration, in addition to evolving 

legal developments, the question is 

being asked—is the attorney-client privilege 

under attack? This article will examine the 

measures that have been seemingly taken to 

degrade the attorney-client privilege in 

order to reach corporate wrongdoing, including 

their implications for in-house 

counsel, corporate clients and individuals. 

WATERING DOWN THE ATTORNEY- 

CLIENT PRIVILEGE AND WORK 

PRODUCT DOCTRINE TO ATTACK 

CORPORATE WRONGDOERS 

The U.S. Supreme Court has long upheld 

the importance of attorney-client privilege, 

because the privilege “encourage[s] 

full and frank communication between attorneys 

and their clients.” Upjohn Co. v. 

United States, 449 U.S. 383 (1981). Both “the 

giving of professional advice to those who 

can act on it” and “the giving of information 

to the lawyer to enable him to give sound 

and informed advice” are protected. Id. at 

390. The privilege applies both to individual 

and to corporate clients. Nonetheless, 

claims of privilege in the modern corporate 

context have faced challenges. For example, 

because counsel, especially in-house 

counsel, have become widely involved in 

business operations, “render[ing] decisions 

about business, technical, scientific, public 

relations, and advertising issues, as well as 

purely legal issues,” not all communications 

are presumptively privileged. In re Vioxx 

Prods. Liab. Litig., 501 F. Supp. 2d 789, 797 

(E.D. La. 2007) (organizations “usually cannot 

claim that the primary purpose” of 

emails directly addressed to both attorneys 

and non-attorneys is for legal advice or assistance); 

see Anaya v. CBS Broad., Inc., 251 

F.R.D. 645 (D.N.M. 2007) (the mere fact 

that an attorney is involved in a communication 

does not make that communication 

privileged). 

The modern work-product doctrine 

traces back to the U.S. Supreme Court’s decision 

in Hickman v. Taylor, 329 U.S. 495 

(1947), in which the Court sought to foreclose 

unwarranted inquiries into attorneys’ 

files and mental impressions in the guise of 

liberal discovery. In Hickman, the Supreme 

Court held that an attorney must “work with 

a certain degree of privacy, free from unnecessary 

intrusion by opposing parties and 

their counsel” and be free to “assemble information, 

sift what he considers to be the 

relevant from the irrelevant facts, prepare 

his legal theories and plan his strategy without 

undue and needless interference.” Id. 

at 510-11. 

Though the two principles of attorneyclient 

privilege and work product doctrine 

are related, there are distinct differences between 

them. Generally, in contrast to the attorney-client 

privilege, which may be 

asserted only by the client, either the attorney 

or the client may invoke the work-product 

doctrine. 

Moreover, the attorney-client privilege 

protects confidential communications (including 

documents) between attorneys and 

their clients; in order to enjoy the privilege, 

the exchange of information can only take 

place between the client and her attorney 

(and staff). In contrast, the work product 

doctrine extends to the work product of the 

attorney and her agents (such as investigators 

and insurers) acting at her instruction, 

along with documents commemorating 

communications with third-party witnesses; 

of course such documents must be prepared 

in anticipation of litigation to be afforded 

protection. 

Similarly, the attorney-client privilege, 

though narrow, is an unqualified privilege, 

which will be upheld if an attorney-client relationship 

exists and the proper steps are 

taken to maintain confidentiality. The work 

product doctrine protects only the actual 

product of the attorney, such as documents, 

without protecting the subject matter of the


documents, and can itself be pierced by a 

showing of "substantial need" and "undue 

hardship" so long as the attorneys' and their 

representatives' "mental impressions' and 

"legal theories" are not compelled. 

It is against this backdrop that government 

actors have begun to test the limits of 

these protections. 

THE "YATES MEMO" 

In 2015, while still deputy attorney general, 

Sally Yates issued a memorandum to all 

Justice Department attorneys titled 

"Individual Accountability for Corporate 

Wrongdoing." This memo instructs all government 

attorneys to go beyond simply investigating 

corporations for criminal 

wrongdoing, and encouraged them to investigate 

individual corporate employees as 

well. Given the methodology laid out in this 

memorandum, and the stated objective of 

assessing criminal penalties against individuals, 

the effect of this memorandum has 

been to complicate the preservation of the 

attorney-client privilege. 

Further, though this memorandum was 

presumably created in response to public 

outcry about the failure to prosecute individual 

decision makers, who bore responsibility 

for the banking and financial sectors 

crises, the memorandum is applicable to 

the corporate world at large and can in 

practice lead to the disclosure of confidential 

and protected information. 

The Yates memorandum lays out "six 

key steps" for ferreting out corporate 

wrongdoing. The first is the most relevant 

to this discussion--to be eligible for any cooperation 

credit, corporations must provide 

all relevant facts about the individuals involved 

in the alleged corporate misconduct. 

Although the DOJ has traditionally emphasized 

the importance of identifying culpable 

individuals, prior to the 

memorandum, companies were often allowed 

to disclose improper corporate practices 

without identifying the specific 

individuals involved and still avoid indictment. 

This practice is now specifically disallowed, 

pitting the corporation against the 

individuals who comprise it. 

Further, the treatment of privileged information 

is now uncertain. Under the DOJ 

Principles of Federal Prosecution of 

Business Organizations, corporations need 

not disclose, and prosecutors may not request, 

attorney work product as a condition 

of receiving cooperation credit. However, it 

is becoming apparent that attorney interviews 

of witnesses and potentially culpable 

employees - the primary mechanism used by 

a corporation to gather information about 

misconduct - will not necessarily remain 

protected work product. Recently, a federal 

magistrate ordered production to third parties 

of witness interview memoranda from 

an internal investigation in related civil litigation, 

finding that attorneys had waived attorney 

work product protection when they 

orally disclosed the substance of the memoranda 

to the government, reasoning that 

the disclosure amounted to an "oral download, 

and went beyond offering only detailfree 

conclusions or general impressions." 

SEC v. Herrera, Case No. 17-CV-20301 (S.D. 

Fl. Dec. 5, 2017). Since this common practice 

of sharing information with the government 

following an internal investigation is 

virtually mandated by the DOJ in order to 

gain cooperation credit, it places corporations 

in a nearly impossible position if they 

hope to cooperate with the government and 

still maintain legal protection over internal 

investigation materials (which can then be 

used in subsequent civil litigation by DOJ or 

third parties). 

Even more, in November 2017, the 

DOJ released its Corporate Enforcement 

Policy related to the Foreign Corrupt 

Practices Act (FCPA), the objective of which 

is to incentivize companies to cooperate 

with DOJ by offering presumptions of declination 

for voluntary self-disclosures of violations. 

But to receive credit under the 

new guidelines, companies must give “full 

cooperation” to DOJ, including proactive 

disclosure of “all relevant facts gathered 

during the company’s independent investigation” 

and “attribution of facts to specific 

sources where such attribution does not violate 

the attorney-client privilege, rather 

than a general narrative of facts.” 

Thus, in light of these competing interests, 

corporations and their counsel must be 

particularly mindful of the level of detail 

being provided to the government to prevent 

waiver, while attempting to maximize 

the cooperation credit available. 

THE COHEN DOCUMENTS 

There are limited exceptions to the attorney-client 

privilege. Thus, it is well-settled 

that the attorney-client privilege does 

not protect communications between an attorney 

and a client in furtherance of illegal 

conduct or which is predicated upon covering 

up a crime, regardless of whether the 

parties intended the communications to remain 

"confidential." Relying on this exception, 

on April 9, 2018, the U.S. Attorney’s 

Office for the Southern District of New York 

executed a series of search warrants to seize 

materials from the office, home, and hotel 

room of President Donald Trump's personal 

attorney Michael Cohen, after receiving 

a referral from Special Counsel Robert 

Mueller. 

To obtain the search warrant, prosecutors 

convinced a federal judge that there 

was probable cause that investigators would 

find evidence of criminal activity, and reason 

to believe that the attorney might destroy 

the evidence, thus justifying a warrant 

rather than a subpoena. The affidavits supporting 

the warrant application would have 

made a prima facie case that the attorneyclient 

communications were not privileged 

because Cohen was involved in committing 

or planning some type of fraud. Once the 

documents were seized, instead of employing 

the traditional and separate “taint team” 

to review the documents for privileged material 

before turning it over to investigators, 

a "Special Master" was appointed to determine 

which documents could be turned 

over to federal prosecutors. 

Thus, though President Trump famously 

tweeted after the raid that the 

"Attorney Client privilege is now a thing of 

the past," and that the privilege was "dead," 

there is probably less to fear for the average 

corporate actor and attorneys from this particular 

set of sensational facts than there is 

from the uncertainty surrounding the incremental 

erosion of the attorney-client privilege 

and work-product doctrine by the 

DOJ's current stated policy of punishing individuals 

for corporate malfeasance. In any 

event, these recent examples show just how 

far the boundaries of these privileges are 

being pushed, and are a reminder to corporations, 

corporate representatives, and their 

attorneys to remain vigilant about safeguarding 

these protections. 

Gina E. Och is a partner at 

Murchison & Cumming, 

LLP’s Los Angeles office, 

and chairs the Intellectual 

Property Practice Group 

and co-chairs the Class 

Action Practice Group. She 

focuses her practice on class 

action, unfair business practices and consumer 

rights, intellectual property, commercial litigation, 

and wildland fire litigation at the federal 

and state levels. 

Heather L. Mills is a partner 

at Murchison & 

Cumming LLP’s Los 

Angeles office and co-chairs 

the Emerging Risks & 

Specialty Tort Litigation 

practice group. She focuses 

her practice on products liability, 

including defense of manufacturers 

and distributors, as well as transportation and 

professional liability matters, including defense 

of motor carriers, officers and directors, commercial 

brokers, and architects and engineers.


A LONG WAY FROM 

“GUNS THAT DON’T SHOOT” 

18 PROACTIVE, SELF-DEFENSE TACTICS AGAINST THE EVER-EXPANDING 

APPLICATION OF THE FALSE CLAIMS ACT 

Robert H. Iseman 

Rivkin Radler LLP 

The False Claims Act (FCA) was passed 

by Congress in 1863 to provide a remedy 

against dishonest contractors who were supplying 

the Union Army with guns that 

didn’t shoot, rancid food, ammunition 

filled with sawdust, and uniforms that dissolved 

in the rain. The FCA, which has been 

better-preserved than the spoiled food that 

led to its creation, today targets charitable 

healthcare providers who bear no resemblance 

to the Civil War-era profiteers defrauding 

the government. 

Healthcare systems find themselves on 

the wrong end of FCA claims because they 

innocently misinterpret the complex provisions 

of the Ethics in Patient Referrals Act 

(Stark Law) or the Anti-Kickback Statute 

(AKBS), fail to report and repay “obligations” 

to the government they don’t know 

they owe, or submit claims based on the 

often-concealed misconduct of non-employed 

physicians who operate at their facilities. 

The U.S. Department of Justice (DOJ) 

reports that the total recovery under the 

federal FCA was $3.7 billion in 2017, with 

$2.5 billion recovered from the healthcare 

industry alone. 

The FCA authorizes private individuals 

to bring suit on behalf of the government. 

Such representative plaintiffs are called qui 

tam relators, popularly referred to as 

“whistleblowers,” and they are entitled, 

under the FCA, to receive a portion of the 

recovery. In 2017 the total qui tam settlements 

and judgments for all industries was 

$272 million, of which the relators received 

$49.7 million. 

The annual DOJ report is statistical, 

sterile, and clinical. A sense of the human 

toll and the real-life personal consequences 

are lost. Those with the stomach for it 

should read the accounts of United States ex 

rel. Drakeford v. Tuomey Healthcare System, Inc., 

No. 3:05-CV-02858 (D.S.C.). A $237 million 

FCA judgment against Tuomey resulted 

from a Stark Law violation. The case was settled 

for $72.4 million. Dr. Drakeford, the 

qui tam relator, was paid $18.1 million. The 

Tuomey CEO paid $1 million personally to 

settle claims against him. A judge on the reviewing 

appellate court referred to the Stark 

Law as a booby trap for well-intentioned 

healthcare providers, especially when coupled 

with the FCA. 

Just prior to the announced settlement 

of Tuomey, DOJ released the Yates Memo, 

which requires corporations seeking settlements 

to cooperate with DOJ in assigning 

individual responsibility. 

There is no magic formula to prevent 

FCA claims. All healthcare providers are obligated 

to comply with the law. The self-defense 

strategies discussed in this article are 

not intended to help providers evade the 

law, but to protect those acting in good faith 

from becoming a statistic. 

1. Don’t document the value of anticipated 

referrals. Don’t keep return-oninvestment-type 

calculations for 

financial relationships with physicians. 

Such information suggests that the 

health system has unlawfully “taken 

into account” the volume or value of a 

physician’s referrals. Aggregated information 

about increased use of hospital 

services may be considered by appropriate 

committees, such as planning 

committees. 

2. Be careful about promotional 

PowerPoint presentations. These are 

often referenced in FCA complaints. 

They are likely not privileged documents, 

even if a lawyer is in the room. 

Assume all such presentations will be 

seen by others. 

3. Minimize and explain losses from employed 

physician practices. Most hospitals 

lose money on their employed 

physicians when measured on a profitand-loss 

basis. A health system should 

document a reasonable explanation 

for why it makes economic sense to 

lose money on contracts with employed 

physicians. The practice of employing 

physicians at compensation 

levels that guarantee losses suggests 

that anticipated referrals were unlawfully 

considered. 

4. Don’t permit internal audit (IA) or corporate 

compliance to create non-privileged 

documents concerning sensitive 

compliance topics. Cover sensitive IA 

and compliance work with the attorney-client 

privilege and the attorneywork-product 

doctrine to avoid 

creating a discoverable roadmap for an 

FCA claim. 

5. Engage fair-market-value and commercial-reasonableness 

experts through 

counsel, and don’t allow experts to 

send unsolicited draft reports. Draft re-


ports that contradict or substantially 

vary from the conclusions contained in 

the final document are trouble. Worse 

is the appearance that expert reports 

have been coached by, if not written by, 

hospital executives. 

Experts should be engaged by 

counsel and instructed that they will 

take direction only from counsel, do 

nothing until requested to do so by 

counsel, and won’t send anything in 

writing until requested by counsel. 

6. Valuation reports must be clear and 

persuasive. Almost all FCA defendants 

rely on a favorable valuation report. 

The existence of such a report is not 

determinative of anything. The report 

must make sense and be based upon 

accepted analytical methods and reasonable, 

factual assumptions. 

7. Don’t circulate written legal opinions 

or reports on compliance-sensitive matters. 

Don’t prepare and distribute to 

compliance committees, audit committees, 

directors, or other stakeholders 

written legal opinions or reports on 

sensitive compliance matters. Reports 

should be made orally by counsel. 

8. Be smart and thoughtful about self-disclosures 

to the government. Self-disclosures 

always present important 

advantages and disadvantages. 

Consider them carefully. Use the disclosure 

in a manner that cuts off relators 

under the public disclosure bar. 

9. Understand, correctly apply, and protect 

the attorney-client privilege and 

the attorney-work-product doctrine. 

Statements are not privileged just because 

a lawyer is present. Maintaining 

the privileged character of information 

has two helpful purposes: (1) it denies 

access to privileged communications; 

and (2) the theft and misuse of privileged 

material by a qui tam relator may 

be grounds for dismissal or disqualification 

of plaintiff’s counsel. 

10. Limit access to sensitive information. 

Whistleblowers sometimes gain access 

to information that is outside the requirements 

of their day-to-day responsibilities. 

Access to such information 

should be denied. 

11. Create a “culture of compliance.” The 

board must hold management accountable 

for compliance. IA and compliance 

departments should prepare 

and execute an integrated annual work 

plan that addresses areas of greatest 

foreseeable exposure. 

Compliance personnel should 

have a direct line of reporting to the 

board and not report to in-house counsel 

or the chief financial officer. 

Health systems should maintain a 

hotline as a process to receive anonymous 

reports of suspected compliance 

problems. 

12. Seek insurance coverage. Corporate directors 

have a fiduciary responsibility 

to obtain adequate insurance coverage 

to protect corporate property and to 

file timely claims for losses. Many believe 

that no part of an FCA defense or 

judgment is covered by insurance. That 

is not true. Many policies will cover 

some FCA expenses. 

13. Recognize the difference between Fair 

Market Value (FMV) and Commercial 

Reasonableness (CR). A physician may 

receive compensation consistent with 

FMV but without meeting the separate 

element of CR. The question is 

whether a transaction makes commercial 

sense absent any expectation of referrals. 

And, does the amount being 

paid advance an identified and legitimate 

institutional objective? 

14. Be aware that almost anyone can be a 

qui tam relator. Here are some realworld 

relators, from personal experience: 

• Compliance officers, when their employer 

fails to correct a compliance 

problem; 

• Vendors who believe their competitors 

are getting an unfair advantage 

through impermissible financial 

arrangements; 

• Potential physician partners; 

• Nurses and surgical assistants who 

work in the operating room; and 

• Consultants who are engaged to fix a 

problem or determine whether a problem 

exists. 

15. Pay careful attention to what goes on in 

the operating room and with the operating 

room budget. Certifying Part A 

claims (the hospital portion of the bill) 

for procedures performed by non-employed 

physicians creates a risk. Watch 

out for medical-necessity issues. 

Medical necessity is a condition of payment 

under the Medicare program, 

and seeking reimbursement for procedures 

not permitted under Coverage 

Determination Letters may result in liability. 

16. Petition the U.S. Attorney to dismiss 

cases in which the U.S. Attorney declines 

to intervene. When healthcare 

systems become aware of an unsealed 

qui tam relator action in which the U.S. 

Attorney has declined to intervene, 

they should use the Granston Memo to 

request the U.S. Attorney to move to 

dismiss. 

17. Adopt reasonable personnel policies 

aimed at the threat of whistleblowers. 

Current law makes non-disclosure 

agreements and pre-filing releases unenforceable 

against whistleblowers as a 

violation of public policy. But employers 

should still consider protective contract 

provisions and personnel policies: 

• A broad prohibition against employees, 

vendors, and contract partners 

providing confidential or proprietary 

information outside the organization; 

• Use of only the employer’s IT system 

and a prohibition against downloading 

any information on any device not 

owned by the employer; 

• A permissible-use policy that prohibits 

the employee from accessing restricted 

information; 

• The return of all property upon termination 

of employment; 

• Required reporting of any contact 

with any outside regulatory or law enforcement 

agency; and 

• Severance payments conditioned on 

the signing of a separation agreement 

in which the employee affirms compliance 

with the foregoing and provides a 

general release. 

18. Treat whistleblowers with respect and 

do not retaliate against them. Federal 

and state law contains extensive protections 

for whistleblowers, and case law is 

developing rapidly. Consult counsel in 

this tricky area. 

This article is a summary of a more in-depth series 

on the topic. If you would like to receive updates, 

please email info@rivkin.com. 

Robert H. Iseman, a partner 

at Rivkin Radler, has 

represented institutional 

and individual healthcare 

providers and health insurers 

for more than 40 years. 

Areas of representation include 

corporate governance 

and compliance issues, internal compliance investigations, 

fraud and abuse, integrated 

healthcare delivery systems and related antitrust 

issues, medical staff relationships, peer review, 

risk management, and related litigation. He 

can be reached at robert.iseman@rivkin.com.


THE EVOLUTION OF 

STRUCTURED SETTLEMENTS 

Rachel D. Grant, CSSC Structured Financial Associates, Inc. 

Andrew K. Fisher, CSSC Structures, Inc. 

Since 1982, both federal law and IRS 

regulations have legislatively encouraged 

plaintiffs to use structured settlement annuities 

to resolve their physical injury and 

wrongful death cases. The economic uncertainty 

that the 2008-09 recession brought 

has caused a dramatic surge in interest for 

traditional structured settlements. Plaintiffs 

and their attorneys use structured settlements 

to ensure that guaranteed tax-exempt 

payments act to protect against poor 

financial management and volatility in the 

financial markets. 

Historically, U.S. law has recognized 

that personal injury damages should be excluded 

from taxable income since the 

Revenue Act of 1918. Section 104(a)(2) of 

the Internal Revenue Code codified the law, 

guaranteeing that lump sum monies received 

for the damages “on account of” 

physical injury are excluded from gross income. 

There was, however, no exclusion for 

interest and investment earnings. In 1983, 

Public Law 97-473 amended Section 

104(a)(2) to allow that the full amount of 

the future periodic payments from a structured 

settlement, which consists of both 

principal and interest, constitute damages 

and are, therefore, exempt from federal tax 

liability. In 1997, amendments to the federal 

tax law expanded the use of structured settlements 

to include workers’ compensation 

STRUCTURED SETTLEMENTS 

ARE ALTERNATIVES TO CASH-ONLY 

NEGOTIATIONS WHICH ALLOW 

DEFENDANTS TO MATCH 

SETTLEMENT DOLLARS TO 

THE FUTURE NEEDS OF A PLAINTIFF. 

THE CONSERVATIVE NATURE 

OF TRADITIONAL STRUCTURED 

SETTLEMENTS HAS GIVEN BIRTH 

TO THE DEVELOPMENT OF A 

MARKET-BASED SOLUTION 

FOR PLAINTIFFS TO CONSIDER 

WHEN SETTLING THEIR 

PERSONAL INJURY CLAIM. 

claims [Section 104(a)(1)]. 

With the establishment of Section 130 

of the Internal Revenue Code, federal law 

facilitates the assignment of the obligation 

to make future periodic payments to a third 

party. This assignment of a defendant’s (or 

its insurer’s) obligation allows the defendant 

to obtain a full release and close its 

claim file and its future liability to make the 

periodic payments. 

Section 130 mandates that tax-exempt 

future periodic payments which are assigned 

must be funded by either life insurance 

company annuities or U.S. Treasuries, 

two of the most secure funding sources 

available. The most common way to fund 

structured settlements has been and continues 

to be with fixed annuities from highly 

rated life insurance companies. 

In developing a settlement strategy, a 

structured settlement offers defense counsel 

and their clients an alternative to a cashonly 

negotiation. The “time value of 

money” principle affords the opportunity to 

create a variety of payment streams tailored 

to the plaintiff’s specific situation. This 

focus on future needs can include “period 

certain” payment streams, payable for a specific 

period of time immediately or in the 

future, to provide for specific medical 

needs, lost earnings, education, scholarship 

funds, and the like. Lifetime annuities can 

provide payments for the claimant’s life and 

can be guaranteed for specific periods of 

time to provide for ongoing compensation 

to the claimant’s surviving beneficiaries. 

Further, structured settlement payments 

should be coordinated with the current 

and anticipated income sources of the 

plaintiff. For example, if a plaintiff is currently 

employed but is concerned about 

funding his/her children’s education goals 

or their own future retirement plans, an income 

stream can be set up to start or increase 

periodic payments at those future 

dates. If provisions need to be made for a


child’s loss of medical insurance coverage 

under her parents’ medical plan, the structured 

settlement can provide a “fund” to 

provide for monthly premium payments. 

If you are working with workers’ compensation 

claims, the traditional structured 

settlement is a tried and true method to 

fund Medicare Set-Aside allocations 

(MSAs). After the initial “seed” cash deposit, 

a structured settlement can be set up 

to fund the Medicare Set-Aside on an annual 

basis to pay for medical expenses related 

to the work-related illness or injury. 

This protects the MSA account from premature 

consumption and is, therefore, viewed 

favorably by CMS. 

Once the defendants have made settlement 

offers to a financially savvy plaintiff, 

there is often a moment in the life cycle of 

a claim where a structured settlement offer 

is rejected so that the plaintiff can look to 

other investments with potentially higher 

market-related returns. These plaintiffs can 

afford to take some market risk or may have 

discretionary settlement dollars because of 

ongoing employment or previous settlements 

and may be seeking an all-cash settlement. 

An innovative method of engaging 

these plaintiffs in order to bridge the gap 

between demand and available settlement 

dollars is essential to effective negotiations. 

Settlements Plus, a market-based solution 

that offers the plaintiff tax-free or taxdeferred 

periodic payments with the 

potential for market-related returns, was 

created as the next evolution of structured 

settlements and can serve as an additional 

settlement tool to augment the traditional 

structured settlement fixed annuity. Each 

case is different, and a market-based solution 

isn’t always appropriate; a combination 

approach may make sense to address future 

needs and provide upside for discretionary 

settlement dollars. An open architecture 

platform allows the plaintiff to choose between 

passive or active investment strategies 

that include model portfolio options 

through the program’s master custodian or 

customized portfolio management through 

an external financial advisor. 

How does this work? Like a traditional 

structured settlement and in keeping with 

Section 104(a)(2), the future payments 

must be fixed and determinable to receive 

tax-exempt or tax-deferred status (physical 

injury or non-physical injury settlement). At 

the time of the settlement, the plaintiff decides 

the amount of the initial investment 

and the frequency of payments (including 

quarterly, semi-annually, annually and/or 

lump sums). While lifetime payments are 

not allowed, payments can be scheduled 

through normal life expectancy. As with traditional 

structured settlements, the defendant/insurer 

must agree to fund, and a 

proper release (with applicable payment 

language) and assignment agreement must 

be executed. 

So how does defense counsel and 

her/his client utilize these tools to their full 

advantage to settle a case and close their respective 

files? 

Recently, a structured settlement 

Consultant was involved in settlement negotiations 

on the auto accident claim for a 9- 

year-old girl. “Jenny” sustained significant 

damage to her spinal cord, resulting in a 

compromised life expectancy. Plaintiff’s 

counsel’s case evaluation was $50 million, 

including a medical lien in excess of $1 million. 

The parties ultimately resolved the 

claim for $4 million. Jenny’s parents were 

professionals with advanced degrees, and 

her attorney was sophisticated. A Special 

Needs Trust was established to ensure that 

the settlement proceeds will be most effectively 

utilized to provide for Jenny’s lifetime 

medical and living needs, including home 

modifications. 

When the Consultant prepared traditional 

structured settlement proposals at 

the total settlement amount of $4 million, 

she allocated $2 million for an immediate 

cash payment (for payment of the negotiated 

lien, attorney’s fees and costs) and $2 

million to be invested into the structured 

settlement annuity to provide lifetime 

monthly income for Jenny. The annuity 

generated lifetime monthly income of 

$7,261 per month, with a guaranteed return 

of $2,004,304 during the 23-year guarantee 

period. 

Because this proposal generated an internal 

rate of return of less than 4%, Jenny’s 

parents were interested in taking a less conservative 

approach to providing for their 

daughter’s long-term needs and opted to 

combine the traditional structured settlement 

annuity with a market-based plan. 

Utilizing the $4 million settlement 

amount, an immediate cash payment of 

$2,105,686 was allocated for payment of the 

attorney’s fees and the negotiated lien 

amount, as well as providing seed money for 

the Special Needs Trust. The settlement incorporated 

a traditional structured settlement 

with a present value of $894,314, 

which generated $1,020,000 over its guaranteed 

10-year period. The parents sought advice 

from their financial advisor and opted 

to have an additional $1 million allocated 

to a market-based plan, which provided for 

payments to begin after traditional structured 

settlement payments (in 11 years) and 

had a payout period of an additional 20 

years. 

In total, the hybrid plan that Jenny’s 

parents chose, pairing the traditional structured 

settlement with a market-based settlement 

solution, is anticipated to generate in 

excess of $5.3 million to provide for Jenny’s 

care and keeping over the next 30 years. 

Guaranteed payments are extremely 

important when developing a settlement 

plan and are instrumental in addressing the 

future needs of an injured plaintiff. For this 

reason alone, a traditional structured settlement 

annuity should be considered the 

bedrock of the plaintiff’s long-term financial 

plan. 

Just as defendants and their counsel 

continue to seek state-of-the-art discovery 

and trial tools, structured settlements and 

market-based solutions should be considered 

as instruments to be utilized to obtain 

the best settlement results in their claims 

settlements practice. 

Structured Financial Associates, Inc. and its affiliates (collectively, 

"SFA") does not provide advice or services related to the 

purchasing of, selling of, or investing in securities or other financial 

instruments. Any discussion of securities contained 

herein is not intended or written to be used, and cannot be used, 

as advice related to the purchasing of, selling of, or investing 

in securities or other financial instruments. SFA does not provide 

legal, tax, or accounting advice or services. Any discussion 

of legal or tax matters contained herein is for illustrative purposes 

only and is not intended or written to be used, and cannot 

be used, as legal advice or for avoiding any penalties that may 

be imposed under Federal tax laws. 

Rachel D. Grant, CSSC is a 

Certified Structured Settlement 

Consultant with 

Structured Financial Associates 

(SFA), USLAW’s exclusive 

structured settlement 

corporate partner. SFA is an 

Integrated Financial 

Settlements company. She has 25 years’ experience 

in the structured settlement business, specializing 

in complex litigation, including 

medical malpractice, transportation and workers’ 

compensation. Rachel also serves as SFA’s 

Director of Communication. She can be reached 

at rgrant@sfainc.com 

Andrew K. Fisher, CSSC is 

a Vice President of Sales & 

Marketing in the Atlanta 

office of Structures (an 

Integrated Financial Settlements 

company). He supports 

IFS agencies with 

unique insurance-based and 

market-based settlement solutions. He is a member 

of the National Structured Settlements Trade 

Association with the Certified Structured 

Settlement Consultant (CSSC) designation. 

Andrew can be reached at afisher@structures.com.


Before 

You 

Seal 

the 

Deal 

How 

Multiemployer 

Pension Plan 

Withdrawal 

Liability Can 

Impact An Asset 

Purchase 

Beverly Alfon 

SmithAmundsen 

Caveat emptor (“Let the Buyer Beware”). 

Consider yourself warned. The general rule 

that a purchaser of assets does not assume 

the debt and liabilities of the seller – does 

not apply when the seller has been obligated 

to contribute to a multiemployer defined 

benefit pension fund. Asset 

purchasers are being hit with successor liability 

for withdrawal liability. 

LET’S BREAK THIS DOWN 

The potential for withdrawal liability 

only exists as to a multiemployer defined 

benefit (pension) plan. 

What is a multi-employer fund? It is an 

employee benefit plan to which an employer 

becomes obligated to submit contributions 

based on a collective bargaining 

agreement with a union. A fund is referred 

to as “multiemployer” because the plan is 

funded entirely by contributions from numerous 

employers and investment returns 

on those amounts. It offers the same types 

of employee benefits that individual employers 

provide for their employees, such as 

retirement, medical and training benefits. 

What is a defined benefit pension plan? 

Defined benefit pension plans define the 

monthly benefit that an employee will receive 

in retirement, based on a formula that 

typically considers years of service for employers 

who participate in the plan. 

What is withdrawal liability? By federal 

statute, multiemployer pension plans pool 

risk so that the withdrawal of a few employers 

from the plan will not jeopardize the financial 

health of the trust. The 

Multiemployer Pension Plan Amendment 

Act of 1980 (MPPAA) amended the 

Employee Retirement Income Security Act 

of 1974 (ERISA) to impose liability on an 

employer who withdraws from a multiemployer 

defined benefit pension plan that 

has unfunded vested benefits. The liability 

is for the employer’s “share” of the unfunded 

vested benefits of the plan. The 

manner in which the liability is calculated, 

communicated, disputed and collected is all 

set forth under the MPPAA. Since the U.S. 

financial market bubble burst back in 2008, 

these multiemployer pension plans have 

faced significant decrease in the value of 

plan assets and employer withdrawal from 

plans. 

What triggers withdrawal liability? An 

employer can trigger complete withdrawal 

(ERISA §4203(a)) when it stops making 

benefit contributions to the plan, either because 

it no longer has the contractual obligation 

to do so (i.e., it terminated its CBA 

with the union or stopped all or part of its 

operations that was covered by the CBA) or 

because it stopped making the contributions 

(because it shut down the business, negotiated 

out the portion of the CBA that 

required the contributions to the fund, or 

the company sold its assets to an employer 

that did not assume the existing CBA). A 

partial withdrawal (ERISA §4205) occurs 

when there is either (a) a 70% decline in 

contribution units; or (b) a cessation of the 

employer’s contribution obligations under 

one, but not all, of the employer’s CBAs or 

one, but not all, of the employer’s facilities, 

and the employer continues to perform the 

work that it previously made contributions 

for to the fund. 

HOW IS THIS RELEVANT TO MERGERS 

& ACQUSITIONS? 

The general rule is that withdrawal liability 

will be imposed upon the employer 

who had the obligation to contribute to the 

pension fund (in this scenario, the seller).


However, over the past few years, federal 

courts have significantly expanded a seller’s 

withdrawal liability to reach the asset purchaser. 

In 2016, the Seventh Circuit found an 

asset purchaser potentially liable for the 

seller’s withdrawal liability in Board of 

Trustees of the Automobile Mechanics’ Local 701 

Union and Industry Pension Fund v. Full Circle 

Group, Inc., 826 F.3d 994 (7th Cir. 2016). To 

impose successor withdrawal liability on the 

buyer, the Seventh Circuit enumerated only 

two elements: (1) notice of the potential liability 

prior to the purchase; and (2) substantial 

continuity in the operation of the 

business before and after the sale. The 

court rejected the purchaser’s claim of ignorance: 

[The purchaser] may never have heard 

of withdrawal liability or known that 

the union pension fund was underfunded…but 

knowing that he was 

dealing with a union pension fund he 

was on notice that there was a possibility 

of such liability. A lack of familiarity 

with the concept of withdrawal 

liability cannot be an excuse; he had 

lawyers to advise him on [his company’s] 

legal obligations. Further evidence 

of notices is the fact known if not 

to him then (again) to his advisers 

that most union pension funds are underfunded 

[.] 

The Seventh Circuit determined that 

the purchaser had notice of the potential liability 

based on its knowledge that the workforce 

was unionized. It remanded the case 

to the district court for trial on the second 

element of substantial continuity of the operation. 

That case was clearly in line with the 

Seventh Circuit’s 2015 ruling that notice of 

potential withdrawal liability is sufficient to 

impose the liability upon a successor, in this 

case the asset purchaser. Tsareff v. ManWeb 

Services, Inc., 794 F.3d 841 (7th Cir. 2015) 

(Man Web I). To find otherwise, the court 

explained, would create a “liability loophole” 

whereby multiemployer plans “would 

be foreclosed in some situations [where an 

employer withdraws as a result of the asset 

sale and the demand for withdrawal liability 

post-dates the closing of the asset sale] but 

not others [where an employer ceases operations 

due to bankruptcy] from seeking 

withdrawal liability from asset purchasers 

who would otherwise qualify as successors, 

and the plans would be left ‘holding the 

bag.’” The Seventh Circuit remanded the 

case to the district court to determine the 

issue of sufficient continuity of operations. 

The district court issued its decision against 

the pension fund, finding no substantial 

continuity of business operations. However, 

in March 2018 the Seventh Circuit reversed 

the district court, holding that it erred by 

focusing “more on the continuity of the prepurchase 

ManWeb business at the expense 

of examining the more critical degree of 

continuity of [the purchaser’s business].” 

Indiana Electrical Workers Pension Benefit Fund, 

et al. v. ManWeb Services, Inc., 884 F.3d 770 

(7th Cir. 2018) (ManWeb II). The court referred 

to it as a “Big Buyer” loophole, which 

would destroy “a finding of continuity even 

where a large buyer in essence swallows a 

smaller seller whole and continues its business 

as part of the buyer’s business.” The 

court even referred to a press release “describing 

the transaction not as an asset purchase 

but as an acquisition and merger,” 

which the court described as “the language 

of continuity.” The Seventh Circuit directed 

the district court to reevaluate the continuity 

factors by focusing on the extent to 

which the business of the seller was continued 

by the purchaser after the asset purchase, 

considering the following factors: 

ownership, physical assets, intangible assets, 

management and workforce, business services, 

and customers. 

On June 1, 2018, the Ninth Circuit 

held in Heavenly Hana LLC v. Hotel Union & 

Hotel Industry of Hawaii Pension Plan, that a 

private equity company that acquired a 

hotel was liable for the seller’s unpaid withdrawal 

liability of $750,000. The Ninth 

Circuit rejected the district court’s requirement 

of “actual notice” of the liability to the 

buyer and determined that “constructive 

notice” was sufficient to impose successor 

withdrawal liability “because a reasonable 

purchaser would have discovered their predecessor’s 

withdrawal liability.” The court 

found constructive notice on the following 

facts: (1) the private equity company was experienced 

in other acquisitions that involved 

multiemployer pension plans; (2) 

the private equity company had notice that 

the hotel employees were unionized and 

the seller contributed to a multiemployer 

plan; and (3) the pension plan’s funding 

notices, which clearly indicated that it was 

underfunded, were available to the public. 

The seller’s representation of no withdrawal 

liability to the buyer, and the buyer’s reliance 

on incorrect advice of its counsel, did 

not sway the court. 

These recent decisions make clear that an 

investigation regarding potential successor 

withdrawal liability must be a part of an 

asset purchaser’s due diligence. 

BEST PRACTICES 

• If any of the seller’s employees are unionized, 

determine the seller’s defined benefit 

pension plan obligations and 

potential withdrawal liability. 

• Investigate into all publicly available plan 

documents, request and review all formal 

plan notices issued to the seller over the 

past several years, and requiring the seller 

to request a withdrawal liability estimate 

from the pension plan. 1 

• Determine whether there are applicable 

industry exemptions to the assessment of 

withdrawal liability, such as the construction 

industry exemption. 

• If there is potential withdrawal liability, 

negotiate the price down and negotiate 

some protection through an ERISA 4204 

agreement. 2 

Keep in mind that there are also legal 

obligations that may attach to the purchaser 

under the National Labor Relations Act, 

with respect to notice and bargaining obligations 

(which are beyond the scope of this 

article). 

Long before sealing the deal, traditional 

labor and benefits counsel should be 

called upon in any asset purchase transaction 

involving unionized employees. 

1 

It should be noted that a plan has up to 6 months to 

respond to a request for a withdrawal liability estimate 

(although most respond much sooner) and the 

plan may pass on the cost of actuarial services to calculate 

the estimate. 

2 

If a potential purchaser is willing to continue contributions 

to the pension fund, it may avoid potential 

withdrawal liability through the use of ERISA Section 

4204 asset sale language. Under this type of agreement, 

the purchaser agrees to maintain the same 

level of pension contributions as required under the 

seller’s CBA with the union, plus satisfy a number of 

other requirements set forth in the statute. If agreed 

upon, withdrawal does not immediately occur as a result 

of the sale. However, the statutory requirements 

can be onerous and it does not completely relieve 

the purchaser from potential withdrawal liability. 

The purchaser takes the place of the contributing 

employer and becomes susceptible to all of the 

events that may trigger withdrawal liability. 

Beverly Alfon is a partner 

in SmithAmundsen’s Labor 

& Employment Practice 

Group in Chicago. She 

counsels employers regarding 

a full range of issues -- 

from development of work 

policies and negotiation of 

employment and severance agreements, to 

strategic planning related to collective bargaining, 

union avoidance, pickets and strikes.


LOCKING THE PLAINTIFF IN 

Accident 

Demonstrations in 

Product Liability 

Litigation 

J. Michael Kunsch Sweeney & Sheehan, P.C. 

Understanding a plaintiff’s use of or 

exposure to a product, and documenting 

how an accident happened, is the foundation 

to the successful defense of all product 

liability litigation. To defend the manufacturer 

or distributor of a product, it is critical 

to use the product (if available) or an exemplar 

as part of the discovery process to explore 

the plaintiff’s knowledge (and later, 

their liability expert) about the product, 

and to have the plaintiff demonstrate during 

their deposition how the product was 

being used at the time of the accident. In 

order to do this effectively, product defense 

counsel must possess personal knowledge of 

the product, its warnings and instructions, 

components and use. Through this 

process, the facts of the case are locked in 

and defense themes are revealed. 

In this article, we explore best practices 

for conducting discovery to set up and secure 

an accident demonstration. Often, the 

plaintiff’s deposition is the first time an injured 

person and their attorneys are faced 

with understanding the complete intended 

use and operation of the product and 

whether plaintiff’s version of the accident is 

consistent with all of the evidence. Properly 

done, an accident demonstration will reveal 

evidence of plaintiff’s conduct as causative 

of the accident rather than any claimed defect 

in design, manufacture or warning. 

While the deposition may not end the plaintiff’s 

case, it locks them into a set of facts for 

the defense to target to defeat any defect allegations. 

PRODUCT KNOWLEDGE IS THE KEY 

Counsel must possess superior knowledge 

in order to properly defend the product, 

its design and use. To that end, there 

is no substitute for using the product to understand 

its design, function, capabilities, 

and limitations. Only through this process 

can safe operation be learned, and instructions 

and warnings given proper context. 

The simple task of turning on a product 

provides knowledge of the properties of the 

product, including its power, sounds and 

obvious dangers. These factors are critical 

when questioning an experienced user, as 

the plaintiff is likely to be. 

Depending on the type of product, it 

may also be helpful to watch an experienced 

user operate it in its environment of 

intended use. An in-house engineer or 

safety professional can explain the operation 

of the product, demonstrate its use, 

and highlight hazards inherent in that use. 

INITIAL DISCOVERY TO IDENTIFY 

FACTS AND ALTERNATE VERSIONS 

In discovery, the plaintiff must be required 

to specify knowledge and experience 

with the particular product, and other similar 

products owned or used. Interrogatories 

should be drafted seeking a complete picture 

of the environment of use of the product, 

prior uses by the plaintiff and its use on


the date of the incident. Specific questions 

should be asked about any material or object 

the plaintiff was working with/on at the time 

of the accident so that, if these were not preserved, 

there is sufficient information to obtain 

or create exemplars. Changes or 

modifications of the product should be documented 

so the product, or the exemplar, 

can be placed in the same condition as the 

time of the accident. The validity of a reenactment 

is increased when the facts are fully 

documented. 

In addition, obtaining all relevant documents 

regarding the accident (accident reports, 

witness statements, EMS and medical 

records, etc.) provides an understanding of 

the circumstances of the accident and allows 

the defense attorney to question the 

plaintiff about the manner in which the accident 

happened orally before the demonstration. 

Often these records also contain a 

myriad of alternate accident scenarios for 

the defense to analyze, question the witnesses 

about and determine which could 

have conceivably led to the claimed injuries. 

The in-house engineer and/or outside 

expert should be involved in all phases of 

discovery, to provide background and operational 

knowledge of the product, assist in 

drafting discovery to the plaintiff, and outline 

areas of inquiry and questions for the 

deposition. They will also have insight on 

prior accidents, and successful past defense 

strategies. The liability expert will know 

what information is needed later to analyze 

the accident and defect claims to prepare 

her/his opinions. 

THE DEPOSITION AND ACCIDENT 

DEMONSTRATION 

The accident sequence involving any 

product is not easily captured through oral 

testimony alone. Many factors required to 

reconstruct the accident are involved, including: 

• warnings, instructions and manuals; 

• service/maintenance history; 

• power source and location; 

• body position in relation to the product; 

• position of the injured body part(s) on or 

in relation to the product; 

• the dimensions of any material, workpiece 

or object involved in the accident; 

• location of guards, interlocks or other 

safety devices; and 

• specific task being performed at the time 

of the accident. 

Using the product (if available) or an 

identical exemplar while questioning a 

plaintiff at deposition or trial allows the defense 

attorney to specifically and completely 

interrogate the witness. In light of the foregoing, 

it is important to notice the deposition 

to be videotaped. Fed. R. Civ. P. 

30(b)(3) explicitly permits depositions to 

be recorded by audio, audiovisual, or stenographic 

means. Further, the notice should 

include a request for a demonstration of the 

accident so that the parties can reach an 

agreement on the parameters of the deposition 

or, if necessary, litigate the request 

prior to the deposition. Although not critical 

in every case, if possible, the deposition, 

or at least the reenactment, should occur in 

the accident location. 

Although the federal rules of civil procedure 

permit a deposition to be videotaped, 

the rules are silent regarding 

whether a plaintiff can be compelled to 

demonstrate how the accident occurred. 

Surprisingly, there is also relatively little case 

law on this subject. However, the reported 

decisions acknowledge the value of requiring 

the plaintiff to reenact or demonstrate 

the accident to enhance the value of the testimony. 

See Gillen v. Nissan Motor Corp. in 

U.S.A., 156 F.R.D. 120 (E.D. Pa. 1994) (seat 

belt); Kiraly v. Berkel, Inc., 122 F.R.D. 186 

(E.D. Pa. 1988) (meat slicer); Roberts v. 

Homelite Div. of Textron, Inc., 109 F.R.D. 664 

(N.D. Ind. 1986) (lawn mower); Carson v. 

Burlington Northern, Inc., 52 F.R.D. 492 (D. 

Neb. 1971) (steel press); Carotenuto v. 

Emerson Electric Co., 1990 WL 198220 (E.D. 

Pa. Dec. 3 1990) (radial arm saw); Grayson 

v. Emerson Electric Co., 16 Cal.4th 1101 

(1997) (radial arm saw). 

Courts are likely to impose some practical 

limitations on the demonstration. 

These include requiring that that the product 

remain unpowered and safety protocols 

be following. These limitations are minimal 

in comparison to the benefits of obtaining 

video of the plaintiff demonstrating the accident. 

Defense counsel should arrange to 

have the in-house engineer present during 

the deposition. The expert can assist with 

organizing the location and product and 

make sure all conditions are documented 

during the deposition. More importantly, 

the expert can watch the demonstration 

and ensure that it is complete and captured 

the testimony so it will be useful later. 

It is important to walk the plaintiff 

through the accident verbally before the 

reenactment. This allows a complete understanding 

of the circumstances and facilitates 

an efficient demonstration. Once 

counsel is prepared to conduct the demonstration, 

the conditions and accident sequence 

must be documented on the record 

as completely as possible, including: 

• the physical location of the deposition; 

• a description of the product being used 

for the demonstration; 

• any differences between the product 

being used at the deposition and the condition 

of the product being used at the 

time of the accident (exemplar v. actual); 

• where the product was located at the time 

of the accident; 

• how the product was set up at the time of 

the accident; 

• presence and location of any witnesses or 

others at the scene; 

• what else was happening in the area at 

the time of the accident; 

• what operation the plaintiff was performing 

at the time of the accident; 

• description of the material, workpiece or 

object being used; 

• body, feet and hand position in relation 

to the product; 

• how the product was powered; 

• as precisely as possible, how the accident 

happened; 

• description of any parts of the product 

that contacted the plaintiff and where; 

and 

• what happened to the product following 

the accident. 

Once complete, the plaintiff is locked into 

an accident sequence. This limits their experts. 

It also provides a game plan for further 

discovery to support the defense themes, and 

may help prevent the plaintiff from demonstrating 

substantial similarity and offering evidence 

of other accidents at trial. 

CONCLUSION 

Thorough knowledge of the product 

and the facts of the case are key for the defense 

attorney, with the input of in-house 

and outside experts. With preparation, the 

accident demonstration becomes the centerpiece 

and seminal moment in the defense 

of product liability litigation. 

J. Michael Kunsch, a shareholder 

in the Philadelphia 

office of Sweeney & 

Sheehan, is an AV-rated attorney 

who concentrates his 

practice in the defense of 

product liability and general 

litigation, including complex 

torts and catastrophic injuries. He is a 

1988 graduate of the University of Arizona and 

a 1991 graduate of the Villanova University 

School of Law, and has been recognized from 

2011-2018 as a Pennsylvania Super Lawyer - 

Product Liability Defense.


Trying the 

Indemnity Case 

Mark S. Barrow and Ryan C. Holt 

Sweeny, Wingate & Barrow, P.A. 

While the availability of indemnity is 

not confined to a particular practice area, it 

appears most often in those contexts where 

multiple entities are engaged in commerce 

which intersects in some way with the plaintiff. 

This article explores the theories of recovery 

in indemnity and the practical ways 

in which the indemnity case might be tried. 

THEORIES OF RECOVERY 

The theories of recovery typically available 

to an indemnitee (the one seeking indemnity) 

are contractual or equitable. The 

availability of a contractual indemnity claim 

is of course contingent upon the existence 

of a contract and a provision therein that 

provides for indemnification. Practitioners 

and claims personnel alike have no doubt 

seen a wide variety of indemnification provisions. 

Some contracts contain dual indemnification 

provisions which in many 

contexts prove inconsequential because the 

provisions in some way cancel each other 

out. Other provisions are exceedingly specific, 

thereby reducing the availability of indemnification 

to a small universe of occasions. 

Other indemnification provisions are 

clearly the result of form drafting over time 

and contain boiler plate language. And still 

others appear in contrast to have been the 

result of a powerful drafter who has ensured 

that all liability has been passed along to the 

weaker party to the contract (e.g., the big 

box retailer whose bargaining power is extraordinarily 

strong). 

The claim for contractual indemnification 

may also be accompanied by a claim for 

breach of contract. Typically, before any 

cross claim or third party action is filed 

against an indemnitor, a tender is made. If 

the tender is accepted, there is of course no 

need for the cross claim or third party complaint. 

If the tender is denied, the denial is 

then alleged to be a breach of the contract 

which requires indemnification. Sometimes 

these breach of contract claims will include 

not only an allegation that the indemnification 

provision was breached, but that likewise 

any insurance provisions were 

breached. Many of the contracts contemplated 

in this article are those which would 

require the indemnitee be included as an 

additional insured on the policy of the indemnitor. 

If the indemnitee was not included 

as an additional insured, the claim 

for breach of contract exists against the indemnitor. 

If the indemnitee was included 

as an additional insured, an opportunity exists 

to now file a companion declaratory 

judgment action against the indemnitor's insurance 

carrier for failure to defend the indemnitee 

as a legitimate additional insured. 

A cousin of contractual indemnification 

is equitable indemnification. This is referred 

to in some jurisdictions as "common 

law" indemnification. In most jurisdictions, 

the elements for such a claim are as follows: 

(1) the indemnitee is exposed to a settlement 

or judgment, (2) the indemnitee has 

clean hands, i.e. it did not do anything to 

bring the judgment upon itself, and (3) a 

special relationship exists between the in-


demnitor and the indemnitee. 

The third element seems at first look to 

be the easiest to satisfy. However, case law 

contains several examples of instances 

where relationships are too attenuated to be 

considered "special." Consider the case of 

a defendant car that rear ends the plaintiff 

car only because the defendant car was 

struck first by a tractor trailer behind it. 

The plaintiff car has a viable personal injury 

claim against the defendant car but the defendant 

car may not seek equitable indemnification 

from the tractor trailer due to the 

absence of a special relationship. Of 

course, the defendant car may have defenses 

it presents in the case brought by the 

plaintiff car, and it may also have personal 

injury and property damage claims against 

the tractor trailer for its own damages, but 

no right to indemnity exists. 

WHOSE CASE AM I ARGUING? 

One of the difficulties associated with 

trying the indemnity case is living within the 

evidentiary confines you may have created 

while defending against the first party plaintiff’s 

claim. At times, you may feel as if you 

are talking out of both sides of your mouth. 

As a primary defendant, your defense strategy 

involves highlighting the plaintiff’s failure 

to satisfy the elements of the causes of 

action which have been pled. You may also 

raise certain affirmative defenses that further 

assist in dismantling the plaintiff’s case. 

Once you settle a case as the primary 

defendant and then pursue an indemnitor 

in a third-party claim or severed cross-claim, 

the well-crafted defense record you established 

to chisel away the plaintiff’s claim 

may now return to haunt you. As a thirdparty 

plaintiff or cross-claimant, you will 

now be required to “stand in the shoes” of 

the plaintiff and prove your case against the 

third-party defendant. Because an essential 

element of equitable indemnity is proving 

that an act of the third-party defendant 

(rather than your own) caused injury to the 

plaintiff, you are essentially arguing the 

plaintiff’s case you just recently resisted. 

While alternative argument/pleading 

is certainly appropriate in the indemnity 

context, your witnesses’ deposition testimony 

from the plaintiff’s case may include 

prior inconsistent statements which may be 

used to impeach any contradictory statements 

made in the prosecution of the thirdparty 

claim. Experts may be forced to take 

contrary positions and so it may be necessary 

to retain new experts for the third-party 

case to make the plaintiff’s case. Suddenly, 

your most favorable witnesses may be those 

whom the plaintiff would have called had 

her case gone to trial. (In a contribution action, 

you may even need to call as a witness 

the plaintiff’s attorney to establish that the 

settlement was not excessive.) 

BENCH OR JURY 

Whether the indemnity case should be 

tried before a judge only or a jury is a nuanced 

inquiry. If the indemnity claim is 

based on a contractual indemnity provision, 

factual questions may exist which need to 

be established by a jury. There may be questions 

concerning whether certain contingencies 

within the provision are met (e.g. if 

indemnity is permitted except in the case of 

the indemnitee’s own negligence and the 

jury is needed to determine if the indemnitee 

was negligent). Of course, the parties 

can certainly waive their right(s) to a jury 

trial and allow the judge to conduct a bench 

trial. 

Equitable indemnity cases are more 

complicated. The very reference to equity 

suggests that the matter should be handled 

entirely by the judge. However, certain factual 

questions, including the question of 

whether the indemnitee has successfully 

proved the plaintiff’s negligence claim, may 

warrant jury involvement in some jurisdictions. 

Perhaps the business versus business 

paradigm typically seen in indemnity cases 

is the practical reason these often dry disputes 

are heard exclusively by the bench. 

PRESENTATION OF THE CASE 

If the parties agree — or the court orders 

— that the case is one in which no 

questions of fact exist or one that should be 

heard exclusively by a judge, the indemnitee 

will probably begin with a short opening 

statement, shorter and more technical than 

that which would have typically been provided 

to the jury. The indemnitor will then 

respond with an opening of its own. 

The indemnitee then begins the presentation 

of witnesses. While a jury trial involves 

the presentation of live witnesses, 

except in the cases of medical providers or 

unavailability, this is less necessary in a 

bench trial. The litigation of the plaintiff’s 

claim has likely yielded a number of deposition 

transcripts, which might be brought 

to court for the trial of the indemnity case. 

With advance approval from the judge, the 

parties might agree to present witnesses entirely 

by deposition. Indeed, because the 

judge’s decision will eventually come in the 

form of a lengthy, reasoned order with findings 

of fact and conclusions of law, she may 

appreciate the collection of transcripts to 

review later in chambers while drafting her 

order. Of course, if a witness whose testimony 

is necessary at trial was never deposed, 

live testimony may be the only 

available option. 

The civil rules do not prohibit a motion 

for judgment as a matter of law (JMOL 

or “directed verdict”) in a bench trial. For 

this reason and for appellate purposes, the 

indemnitor may wish to make the motion at 

the close of the indemnitee’s case in chief. 

It is unlikely that this motion will be granted 

for the same reason the court should not 

decide a motion for summary judgment 

until both sides have presented arguments. 

Because indemnity claims are uniquely 

weighted toward the law, the judge is likely 

to hear all sides before issuing JMOL. 

Mid-trial motions will be followed by 

the indemnitor’s presentation of witnesses 

for its case in chief. Again, for appellate 

purposes the indemnitee should renew its 

motion for JMOL and the indemnitor may 

make a similar motion. Especially if depositions 

are presented and the judge has not 

had time to review the transcripts, these motions 

will likely be denied. At this point, 

both sides may also choose to make brief 

closing arguments. 

CONCLUSION 

As the exposure in personal injury litigation 

increases due to health care costs, expert 

involvement, and other elements, 

claims managers have looked for risk transfer 

opportunities to soften the impact of settlement 

figures, attorney's fees and costs. 

Indemnity cross-claims and third-party 

claims continue to serve as a viable vehicle 

for this risk transfer. 

Mark Barrow is a founding 

member of Sweeny, Wingate 

& Barrow, P.A. and a former 

board member of 

USLAW. For 30 years, he 

has tried cases throughout 

South Carolina’s state and 

federal courts and has argued 

before the state appellate courts and the 

Fourth Circuit Court of Appeals. He maintains 

a diverse litigation practice. 

Ryan Holt joined Sweeny, 

Wingate & Barrow, P.A. 

after a clerkship on South 

Carolina's circuit court. 

He has tried cases in state 

and federal court and argued 

before the State's court 

of appeals. He practices 

mostly in the area of retail claims and has represented 

grocery stores, hotels, restaurants, shopping 

centers and other retailers.


THE LEGALIZATION OF 

Recreational 

Cannabis in Canada 

A PAN-CANADIAN PERSPECTIVE 

Claudia Dubé and Marianne Bessette 

Therrien Couture L.L.P. 

On June 21, 2018, the Canadian federal 

government passed Bill C-45 in order 

to regulate and legalize recreational 

cannabis in Canada beginning on October 

17, 2018. Prior to this date, recreational 

cannabis remains illegal and subject to 

criminal prosecution. Medicinal cannabis 

will continue to be governed by a separate 

legislative framework. 

Bill C-45 has legal and operational impacts 

for foreign businesses operating in 

Canada, especially in the areas of real estate, 

insurance, commerce, labor relations, rules 

of the road and criminal liability. Foreign 

businesses will need to understand and to 

adapt themselves not only to federal but 

also to provincial, territorial and municipal 

regulations, which may be quite different 

throughout Canada. They also need to be 

aware that their U.S., South American or 

European experience of cannabis legalization 

will not necessarily translate into the 

Canadian landscape. 

CONTEXT 

The legalization of recreational 

cannabis was an electoral promise made in 

2015 by the Liberal Party of current Prime 

Minister Justin Trudeau, with the twin goals 

of preventing access to cannabis by youth 

and of depriving criminals and organized 

crime of the profits derived from its sale. 

While some businesses, producers, distributors, 

municipalities, investors and consumers 

are thrilled by the impending 

legalization, this enthusiasm is not universal 

and there are other businesses, municipalities, 

employers, unions, organizations and individuals 

(parents, psychiatrists, teachers) 

that are worried about anticipated difficulties. 

LEGALIZATION OR PARTIAL 

DECRIMINALIZATION? 

Beginning on October 17, 2018, dried 

and fresh cannabis, cannabis oil, and 

cannabis plants and seeds will be publicly 

available in a legal market. Edibles containing 

cannabis and cannabis concentrates are 

likely to be legalized at a later date, possibly 

in 2019, unless the Canadian federal government 

legalizes them earlier; currently 

they remain illegal. 

Once legalization occurs, adult individuals 

at or over the minimal age limit chosen 

by each province or territory (currently 18 

or 19 years of age, depending on the jurisdiction), 

may legally purchase, grow and 

possess a limited quantity of cannabis. 

Generally, eligible individuals will be 

legally able to possess up to 30 grams of 

dried cannabis in public; however, under 

Schedule 3 of Bill C-45 there are equivalent 

quantities for each class of cannabis, which 

may complicate the understanding of this 

threshold, beyond which possession will remain 

a criminal offense: 

CLASS 

OF 

CANNABIS 

QTY EQUIVALENT 

TO 1 G OF DRIED 

CANNABIS 

Dried cannabis . . . . . . . . . . . . . . . . . . . .1 g 

Fresh cannabis . . . . . . . . . . . . . . . . . . . .5 g 

Solids containing cannabis* . . . . . . .15 g* 

Non-solids containing cannabis* . . .70 g* 

Cannabis solid concentrates* . . . . .0.25 g* 

Cannabis non-solid concentrates* . .0. 25 g* 

Cannabis plant seed . . . . . . . . . . . . .1 seed 

*Edibles containing cannabis and cannabis concentrates are 

not yet legalized. 

When it comes to growing recreational 

cannabis, eligible individuals may grow up 

to four plants per dwelling-house. However, 

at the time of the writing of this article, two 

Canadian provinces, Quebec and Manitoba, 

have indicated that they want to enact a 

more severe rule or totally prohibit home


growth, which is likely to bring them into 

conflict with the Canadian government. 

When examined more closely, it becomes 

clear that the “legalization” of recreational 

cannabis in Canada is actually a 

partial decriminalization, since the possession, 

sale, distribution, production (including 

alteration and cultivation), importation 

and exportation of cannabis outside or in 

excess of the restrictive legal framework created 

by Bill C-45, remain subject to criminal 

prosecution. 

Business owners should be aware that, 

unless authorized under the rules enacted 

in Bill C-45, organizations, such as corporations, 

municipalities and trade unions, to 

name a few, are prohibited from possessing 

and distributing cannabis. Canadian criminal 

law provides specific rules for the criminal 

liability of organizations through 

individuals. For instance, senior officers, 

which may include an intermediate manager 

who is responsible for managing an important 

aspect of the organization’s 

activities, may incur the organization’s criminal 

liability through possession or distribution 

of cannabis themselves or through 

other agents of the organization, where 

their intent is to benefit the organization. 

The fines for organizations illegally possessing 

or distributing cannabis can be up to 

$100 000 for an offense punishable on summary 

conviction, or a discretionary amount, 

which may be higher, if the company is 

found guilty of an indictable offense. 

DIFFERENT RULES FOR DIFFERENT 

JURISDICTIONS 

As touched on above, the distribution 

and sale of recreational cannabis, along 

with its consumption and possession, may 

be regulated in some respects by Canadian 

provinces and territories, and peripherally 

by municipalities, as long as their regulations 

are compliant with Canada’s federal 

rules and do not exceed their respective jurisdictions. 

At the provincial and territorial 

level, this will create major differences with 

regard to the: 

• retail sale of Cannabis (i.e. though public 

monopolies or private entities); 

• legal age of consumption; 

• places where use is forbidden; 

• scope of new obligations (i.e. preventive 

measures regarding smoking, signage, 

storage, etc.) and associated fines; and 

• cannabis-related services, objects or activities, 

such as promotional items, marketing, 

cannabis coffee shops, etc. 

In summary, criminal offenses will be 

the same throughout Canada, however, 

provincial/territorial and municipal regulations 

will vary such that behavior that is perfectly 

legal in one province may be prohibited 

in another. It will be critical for business 

owners that operate in multiple Canadian 

jurisdictions to realize that there will be variations 

between jurisdictions and to be aware 

of what these are and how they might impact 

their business. 

CANADA VERSUS THE U.S. 

For businesses operating in Canada 

and the United States, there are important 

differences between the cannabis-related 

rules in the two countries. First of all, U.S. 

federal law prohibits the production, distribution, 

sale and possession of cannabis in 

any form, since cannabis is listed as a controlled 

substance under Schedule I of the 

Controlled Substances Act. The U.S. federal 

Government tolerates a different state approach 

regarding cannabis, where the state 

has passed a law to this effect. 1 Secondly, 

the business model used by these States is a 

model where the cannabis production and 

distribution system is based on private industry 

looking for growth and profits. 2 As 

discussed above, cannabis will no longer be 

completely illegal in Canada, however there 

will be a myriad of rules and prohibitions 

that will apply to limit the promotion of 

recreational cannabis, so as to limit the 

profitability to some degree. Finally, the 

guidelines for recreational cannabis use will 

also be different (for example, the legal 

minimum age and the possession limits). In 

general terms, in U.S. states allowing recreational 

cannabis use, the legal minimum 

age is 21 years old and, except for certain 

exceptions, legal possession is limited to 1 

oz (28.35 grams). 

DRUG TESTING EMPLOYEES 

The principal rules on cannabis drug 

testing by employers are currently similar 

throughout Canada, even though they are 

regulated separately by each Canadian 

province or territory. Generally speaking, 

since a 2013 Supreme Court of Canada decision, 

the Canadian rules regarding mandatory 

random or systematic drug tests by 

employers are very severe, requiring strong 

evidence of increased safety risks, such as evidence 

of a general problem with substance 

abuse in the workplace. This burden is difficult 

to achieve. On a more positive note, it 

is possible to conduct individual tests, which 

are subject to different rules, following valid 

consent or the occurrence of one of the 

events recognized by Canadian law as lawful 

justification for testing. Although this may 

vary on a case-by-case basis, the validity of individual 

tests is generally recognized in the 

following situations: 

• if there is reasonable cause to suspect the 

employee of drug use in the workplace; 

• after direct involvement in a work-related 

accident or incident that is not explained 

otherwise after investigation; or 

• as part of a monitoring program for any 

employee returning to work following 

voluntary treatment for substance abuse. 

RIGHT REFLEXES AND PREPARATION 

Foreign businesses and their lawyers 

need to be aware of the changes being enacted 

to legalize recreational cannabis and 

to start their preparation as soon as possible. 

These steps may include, initially, gathering 

legal and medical information, taking 

and affirming a clear position, drafting a 

clear and complete policy, implementing 

appropriate internal and external procedures, 

training of managers, and meeting 

with employees to communicate the organization’s 

policy, as well as explaining the situation 

and raising awareness. Some 

businesses will also have obligations vis-à-vis 

their customers or other people located on 

their premises or nearby. 

In the end, it is always better to set expectations 

beforehand and to clarify what is 

acceptable conduct before the occurrence 

of a problem. Change is coming, and you 

need to lead from the front! 

This article was submitted for publication on June 26, 2018. 

and was current as of that date. 

1 

National institute of Public Health, Public health expertise 

and reference centre, « Jurisdictions that have 

legalized cannabis », online: 

(consulted on June 29, 2018). 

2 

Ibid. 

Claudia Dubé is responsible 

for Therrien Couture’s 

labor and employment law 

sectors and acts as employer 

spokesperson in collective 

agreement negotiations. 

She also represents employers 

before the civil and administrative 

courts with respect to grievance 

arbitrations, accreditations, labor relations, dismissals 

as well as occupational health and 

safety matters. 

Marianne Bessette practices 

labor and employment law 

and municipal law at 

Therrien Couture L.L.P., 

with a background in general 

litigation. She has developed 

an expertise in the 

area of cannabis legislation 

and is often invited to speak on the subject.


Balance 

Sheet Blues 

and Red 

Faces 

UK Government Dithering 

on Immigration Laws 

Piles the Pressure 

on Business 

For the past two years, BREXIT – 

British withdrawal from the European 

Union (EU) – has dominated political debate 

in the United Kingdom (UK). At the 

heart of the discussion has been the issue of 

inward immigration to the United Kingdom, 

divided into two basic questions: (1) Who is 

allowed to enter, live and work in the UK?; 

and (2) what will be the status of more than 

three million EU citizens already living and 

working inside the country? 

Easy to pose but, apparently, impossibly 

difficult to answer. With less than a year to 

go until the country exits the European 

Union, the British government continues to 

delay publishing the white paper that will 

Julia Jackson 

Wedlake Bell LLP 

set out its policy vision for immigration in a 

post-Brexit Britain. 

The political uncertainty has been corrosive 

for businesses – both big and small. 

Managers have been left unable to make effective 

long-term recruitment and retention 

plans, while overseas nationals have been 

left in limbo, unsure whether to commit careers 

and family to a potentially unwelcoming 

Britain. 

THE VOTE 

Summer 2016 saw the UK population 

decide, by a narrow majority in a referendum, 

to end its European Union membership 

after 43 years. Like all European 

Union member states, the UK's membership 

obliges it to accept freedom of movement 

- the right to live and work in the UK 

without being subject to immigration control 

- for all citizens of the European Union 

and their family members. It is a right that 

attracts furious criticism from those seeking 

withdrawal, who see it as an undermining of 

national sovereignty. 

By contrast, overseas nationals wishing 

to come to the United Kingdom from countries 

outside the European Union, including 

American citizens and even the 

non-British family members of British citizens, 

must comply with the detailed and 

often demanding requirements of UK do-


mestic immigration law. These criteria include 

the need to show sufficient funds for 

living expenses; restrictions on employment; 

and prohibition from claiming any 

public funds. 

DRAFT WITHDRAWAL AGREEMENT 

Out of the fog of political debate some 

details have emerged. Under the terms of 

the Draft Withdrawal Agreement published 

in February 2018, the UK and the remaining 

27 EU states have agreed that the freedom 

of movement rights will continue not 

only until the UK formally leaves the EU on 

March 29, 2019, but, to ensure that there is 

no "cliff-edge," for the duration of a transition 

period that follows, ending on 

December 31, 2020. 

For the estimated 3.6 million EU nationals 

already living in the UK or those taking 

up residence before the end of the 

transition period in December 2020, there 

will be a protection of existing rights with 

the ability to claim "settled status" (similar 

to U.S. green card status) after a period of 

residence of five years and limited leave 

(permission to stay in the UK for a specified 

period) for those who have been here for a 

shorter period followed by settled status 

once they have reached the five-year residence 

criterion. 

WHAT HAPPENS AFTER BREXIT? 

What is not yet clear is the position of 

EU nationals wanting to move to the UK 

after December 2020. 

The UK Government initially declared 

that it would publish a white paper to set 

out its policy vision in Summer 2017. By 

October of that year the paper was being 

promised “before the end of the year,” with 

draft legislation at the beginning of 2018. 

But in November 2017 the Immigration 

Minister could only promise that the white 

paper would be available "soon" and by 

February 2018, amid red faces and vocal 

criticism from all political parties, the only 

commitment was that the paper would be 

available "in the coming months when the 

time is right." The current popular view is 

that we are unlikely to see the document before 

October 2018. 

In part, this rolling delay has been 

caused by uncertainty in other areas of the 

negotiation, most notably over access to the 

EU single market and customs union. But 

there’s also deep public mistrust in the ability 

of politicians to effectively manage immigration; 

carefully balancing the needs of the 

economy and business, shaping the pace 

and pattern of immigration for the benefit 

of society as a whole, while ensuring integration 

and a humanitarian approach. 

DIRECT IMPACT ON BUSINESS 

Vocal anxieties from EU nationals living 

in the UK and UK nationals living elsewhere 

in the EU have done little to calm 

fears on this, while news is emerging that 

employers are already facing recruitment 

difficulties for low-skilled roles, particularly 

in agriculture and hotel and catering commonly 

filled by EU nationals. 

In the meantime, employers have been 

hit by another aspect of government immigration 

policy. Since April 2011 the 

Government has imposed a cap on the 

number of skilled workers that employers 

may bring to the United Kingdom from outside 

the EU, setting an annual limit of 

20,700 to be allocated in tranches on a 

monthly basis. 

Apart from a couple of glitches in 

2015, the system appeared to work smoothly 

– until December of last year, when the 

number of valid requests for certificates exceeded 

supply. Employers are allowed to resubmit 

valid applications but the shortage 

persisted – month after month – as the 

number of applications and re-applications 

snowballed. 

Perhaps hardest hit was the healthcare 

sector where hundreds of doctors and medical 

specialists were refused visas despite the 

massive recruitment problems currently 

being experienced by the National Health 

Service (NHS). 

While data isn't yet available to explain 

why a system that has worked effectively for 

more than seven years should suddenly become 

so unworkable, it seems likely that the 

decreasing number of EU nationals coming 

to the UK, the increasing number of EU nationals 

actually leaving the UK and generally 

high levels of employment have all had 

a bearing. 

While few would argue for uncontrolled 

access to the UK labor market by 

overseas nationals, there can be little merit 

in a system that denies visas to precisely the 

skilled workers that the UK needs. Indeed 

it has generated further accusations of mishandling, 

as UK Home Office policy is intended 

to attract the “brightest and the 

best” to the UK. 

For the health sector, a temporary fix 

was put in place, effective from July 2018, 

that removed all doctors and nurses from 

the immigration cap. It is hoped that – in 

time – this will reduce the pressure and increase 

the availability of visas for other 

much needed skilled workers particularly in 

engineering and IT. 

The issues demonstrate the difficulty of 

designing an immigration system which 

works for industry and employers, is humane 

and responsible and allays populist 

concerns about immigration. 

Meanwhile, while we wait for the white 

paper to be published, rumors have begun 

to circulate that the UK government may 

propose a system allowing EU nationals unrestricted 

rights to live and work in the UK 

after Brexit – a freedom of movement system 

in all but name. While this will be welcomed 

by many employers and EU 

nationals alike, it will inevitably lead to cries 

of betrayal from some of those who voted to 

leave and their populist cheerleaders. 

Other nationalities – including U.S. citizens 

– could also ask why EU citizens remain 

privileged when the UK is no longer in the 

EU. 

Further, a white paper that only seeks 

to address the position of EU nationals post- 

Brexit, will face accusations that it fails to 

deal with the wider question of how the UK 

should address immigration from elsewhere, 

while the need for skilled overseas 

workers continues. 

There are now calls for a root and 

branch review of the whole domestic immigration 

system, one that differentiates between 

different types of migration (family, 

humanitarian and economic) and seeks to 

move away from quick fixes for immediate 

concerns. 

The Holy Grail of immigration policy 

will be to create a means of allowing access 

to high-skilled and high-value migrants in a 

reasonably friction-free manner, while 

measuring low-skilled worker applications 

(seasonal fruit-picking, for example) against 

the filter of economic necessity. 

Furthermore, any system that continues 

to tackle unregulated immigration 

should be balanced, it is argued, by the 

need for the UK to take a fair share of humanitarian 

migrants, those unwillingly displaced 

by war, famine or natural disaster. 

Economic necessity, skill shortages, 

populist expectations, EU negotiating positions 

- only one thing is certain - by the time 

we all see the long-awaited legislation, the 

drafters of the white paper will have had a 

long, hot acrimonious summer. 

Julia Jackson is a solicitor 

and partner at Wedlake 

Bell in London. Julia specializes 

in immigration and 

nationality law and has extensive 

experience of assisting 

employees, entrepreneurs 

and HNW individuals in 

obtaining rights of residence in the United 

Kingdom and also advises on EU residence 

rights in UK.


NAVIGATING THE 

ONE-CLIENT/TWO-CLIENT TRIPARTITE 

RELATIONSHIP BETWEEN THE CARRIER, 

INSURED, AND DEFENSE COUNSEL 

What State 

do you live in? 

Oscar J. Cabanas Wicker, Smith, O’Hara, McCoy & Ford P.A 

David Wilck Rivkin Radler LLP 

The tripartite relationship governing 

the rights and duties among the insured, its 

insurance carrier, and retained counsel to 

represent the insured is a complicated one 

that is like no other in the context of attorney-client 

relationships. The failure to understand 

this intricate relationship can not 

only increase the carrier’s potential exposure, 

which may then lead to extra-contractual 

liability from its insured, it can also 

create exposure to retained counsel from 

the insured, and in extreme cases, exposure 

to retained counsel from the carrier who 

initially created the relationship. 

Understanding the tripartite relationship 

and respecting the roles of each party are 

critical to avoiding the breakdown of the relationship 

and the exposure that may follow. 

This article seeks to educate the reader 

on the basics of the tripartite relationship, 

how to identify key issues, and ways to prevent 

possible conflicts that may emerge. 

The tripartite relationship is the relationship 

among the insurance carrier, its insured, 

and retained counsel. Typically, the 

insurance carrier employs the retained 

counsel to defend the claims brought 

against the insured pursuant to the policy 

agreement between the carrier and insured. 

ONE-CLIENT, TWO-CLIENT, OR DUAL 

REPRESENTATION STATES 

To effectively navigate this complex relationship, 

the first question that must be 

answered is with whom does the retained 

counsel have an attorney-client relationship. 

While the answer to this question may 

seem automatic, it is dependent on in which 

state the retained counsel practices law. In 

states such as New York, the retained counsel 

is charged with solely focusing on the interests 

of the insured 1 and has no direct 

duty to the carrier other than to report on 

the progress of the litigation. Even if retained 

counsel learns of information that 

might be deleterious to the relationship between 

the insured and the carrier, retained 

counsel must take the position that is favorable 

to the insured. 

In a two-client state, such as Alabama, 

the retained counsel shoulders a greater 

duty by representing simultaneously both 

the interests of the insured and the carrier. 2 

If the parties determine that there may be a 

conflict between the insured and the carrier, 

the retained counsel may be required to 

withdraw from the case altogether. In a state 

like Florida, where dual representation is allowed 

but not necessarily required, the initial 

agreement between retained counsel 

and the carrier determines the degree of loyalty 

and duty owed to the insured versus the 

carrier. 3 Once the initial determination is 

made on who the client is, the next step is 

to consider the language of the policy agreement 

and initial engagement letter among


the retained counsel, carrier, and insured. 

The policy agreement and initial letter 

of engagement in many ways guide the tripartite 

relationship. The policy agreement 

sets forth all the intricacies of the relationship 

between the insured and the carrier, 

while the letter of engagement outlines the 

relationship among the retained counsel, 

carrier, and insured. The language of the 

policy agreement is of tantamount importance 

and generally addresses many questions 

that may arise, such as who has the 

right to settle the case and whose consent is 

needed to settle. The letter of engagement 

is also very important as it can serve to 

clearly establish who the client is and clarify 

the expectations of each party’s role in the 

litigation. 

Insurance carriers should exercise caution 

when formulating the policy agreement, 

and retained counsel must ensure 

familiarity with the terms of the policy 

agreement, keeping in mind that the very 

language in the policy agreement may later 

be the grounds for a bad faith or legal malpractice 

claim against the retained counsel. 

The policy agreement will almost always 

contain a provision detailing the carrier’s 

duty to defend and indemnify against 

claims brought pursuant to the policy agreement. 

In some cases, the policy agreement 

will permit the carrier to control the defense 

of litigation, whereas others do not, 

and most will require the insured to cooperate 

with the carrier and retained counsel 

handling the claim. Knowing the language 

contained in the policy agreement will allow 

both the carrier and the retained counsel to 

act within the boundaries of their defined 

roles, thereby minimizing the risk of future 

conflicts and lawsuits. 

Retained counsel should be meticulous 

when preparing the initial letter of engagement, 

being cognizant that the terms of the 

engagement letter may later be used as 

basis for a legal malpractice action against 

him/her. It is prudent that the retained 

counsel’s role is clearly defined and the 

guidelines for potential conflict resolutions 

are outlined within the initial letter of engagement. 

Doing so can serve to preemptively 

address certain potentially contentious 

topics, such as the settlement rights of the 

insured and the carrier, the carrier’s reservation 

of rights, availability of excess/other 

coverages, and whether the communication 

may be shared with the carrier. 

APPLICABLE STATE PROFESSIONAL 

CODE OF CONDUCT 

In addition to his/her obligations 

owed to the insured and carrier under the 

policy agreement and engagement letter, 

retained counsel must also be mindful of 

the applicable state professional code of 

conduct. For example, Rule 1.2 of the 

Model Rules of Professional Conduct states 

that “[a] lawyer shall abide by a client’s decision 

whether to accept an offer of settlement 

of a matter.” In some liability claims, 

the carrier has the right to settle a matter 

without the consent of the insured. Even assuming 

that the carrier’s right to settle 

clearly was defined earlier on, retained 

counsel can be left in a predicament, especially 

when (i) the attorney is in a two-client 

state representing both the insured and carrier, 

and (ii) the insurer and carrier are in 

disagreement as to whether or not they 

should settle the matter. 

NAVIGATING COMPETING DEFENSE 

STRATEGIES 

Relatedly, retained counsel may encounter 

situations where the carrier and insured 

have differing opinions on defense 

strategies, which may be exacerbated if the 

carrier is defending the matter under a 

reservation of rights. For example, in addition 

to the potential liability imposed against 

him/her, the insured is often concerned 

with the reputational damage the litigation 

may cause collaterally, compared to the carrier’s 

concern to control defense costs. In 

other instances, the retained counsel may 

favor a litigation approach that is not appreciated 

by the insured and/or carrier. 

In such circumstances, the retained 

counsel must maintain the delicate balance 

of each party’s interests, focusing on who 

the client is and what duty is owed to each 

party. Of course, in a one-client state, maintaining 

this balance may be easier as the 

counsel’s paramount duty will be to the insured. 

However, in a two-client state, where 

retained counsel owes an additional duty to 

the carrier, finding the right balance can be 

a difficult task, and in some circumstances, 

may require the counsel to withdraw from 

his/her representation. 

The reality is that even when retained 

counsel believes that he/she has skillfully 

maintained his/her balance in navigating 

across such tensional tripartite relationship, 

they may still be subjected to and plagued 

by a legal malpractice lawsuit. More often 

than not, such subsequent malpractice lawsuits 

are premised on the misunderstanding 

of who the client was and to whom the retained 

counsel owed a duty of professional 

care. Similarly, even when the carrier believes 

it has provided appropriate defense 

within the confines of the policy agreement, 

the insured may still pursue a bad faith 

claim against the carrier. 

In sum, the very nature of the tripartite 

relationship, e.g. varying views on who the 

client is, the retained counsel’s duties owed 

to each party, rights of and obligations owed 

to each party, etc., can place the retained 

counsel in a position that is susceptible to 

malpractice claims and the carrier to be 

subjected to bad faith claims. While one 

cannot absolutely prevent the filing of such 

actions by the insured, there are preventative 

steps that the retained counsel and carrier 

can take to reduce such risks and limit 

their respective potential exposure. First, 

the retained counsel and carrier should 

have a thorough understanding of the policy 

agreement and engagement letter, appreciating 

the implications such 

agreements can have. Second, the retained 

counsel should always remember to ensure 

that both the insured and carrier are aware 

of who is representing them and the duties 

owed to the respective parties. Lastly, retained 

counsel should try to balance delicately 

the interests of both the insured and 

the carrier while being guided by the terms 

of the liability policy, engagement letter, 

and the applicable state court decisions and 

rules of professional conduct. 

1 

Feliberty v. Damon, 72 N.Y.2d 112 (1988) (holding that 

“[t]he paramount interest independent counsel represents 

is that of the insured, not the insurer.”). 

2 

Mitchum v. Hudgens, 533 So. 2d 194 (Ala. 1988) 

(“[w]hen an insurance company retains an attorney 

to defend an action against an insured, the attorney 

represents the insured as well as the insurance company 

in furthering the interest of each.”). 

3 

R. Regulating Fla. Bar 4-1.7(e). 

Oscar J. Cabanas is a partner 

at the Miami office of 

Wicker Smith, et al. He received 

his Bachelor of Arts 

degree from Northwestern 

University in 1981 and his 

Juris Doctor degree from the 

University of Miami in 

1984. He specializes in professional liability 

and catastrophic tort claims. He can be reached 

via ocabanas@wickersmith.com. 

David Wilck is a partner at 

Rivkin Radler LLP, where 

he represents professionals in 

the defense of claims involving 

malpractice, breach of fiduciary 

duty, defamation, 

fraud, conspiracy, ethical violations, 

and mismanagement. 

He defends attorneys, accountants, 

directors and officers, insurance agents and brokers, 

real estate agents, debt collectors, and third 

party administrators. He can be reached at 

david.wilck@rivkin.com.


Doing business 

in Canada? 

UNDERSTAND ITS EMPLOYMENT LAWS 

Alex Hunt 

Parlee McLaws LLP 

Despite the international upheaval and 

the unusually aggressive rhetoric of late between 

our ordinarily close nations, the ongoing 

involvement that each country’s 

businesses have in the other cannot be overlooked. 

It is and remains a result of this ongoing 

involvement that our offices are 

regularly contacted to provide assistance with 

ensuring the labor and employment practices 

of U.S. businesses in Canada are compliant 

with Canadian laws, or in more dire 

cases, to help minimize the repercussions associated 

with non-compliant practices. 

To this end, this article provides an 

overview of the more critical considerations 

and risks that need to be kept in mind for 

U.S. businesses with Canadian operations 

and a locally based workforce. 

SOURCES OF AUTHORITY 

Canadian labor and employment laws 

(excepting those in Quebec) are principally 

derived from two sources of authority: (a) 

the employment legislation implemented 

by the provinces or the federal government 

and (b) the extensive body of case law (or 

common law) developed by our court system 

and other non-court entities. 

The legislation of labor and employment 

law is presumptively the responsibility 

of each Canadian province, with approximately 

90% - 95% of employees in Canada 

falling within a province’s sphere of authority. 

Although legislation is generally similar 

from province to province, it is not identical 

and it cannot be taken for granted that 

practices that are compliant in one province 

would be similarly compliant in another. 

The remaining 5% - 10% of employees 

in Canada fall under the legislative auspices 

of the federal government, which has authority 

to regulate employees in a “federal 

work, undertaking, or business.” This would 

typically include companies involved in the 

provision of interprovincial or international 

services (i.e. businesses physically crossing 

borders, such as railways, telephone and 

cable systems, pipelines, ferries, shipping, 

etc.), airline transportation, banks, fisheries, 

federal government employees, and 

Aboriginal activities. 

Whether an employer and their respective 

employees are federally or provincially 

regulated will ultimately be a fact-specific, 

legal analysis. However, unless the employer 

is involved in one of the aforementioned 

federal industries, the default is that its 

workforce will be governed by the laws of 

the province in which its operations are 

based. Governance in this context includes 

the minimum standards for employment, 

labor or union-related activities, human 

rights protections, and occupational health 

and safety requirements. 

The second source of labor and employment 

law in Canada is the common law 

developed by our court system and other 

non-court entities, such as human rights tribunals 

and labor relations arbitrators. By 

way of background, each provincial jurisdiction 

has its own superior level court, as well 

as an appeal level court. Appeals beyond 

each jurisdiction’s designated appeals court 

all flow to the Supreme Court of Canada. 

Decisions from a province’s courts or from 

the Supreme Court of Canada are considered 

authoritative and binding on subsequent 

decisions in that jurisdiction, while


extra-provincial court decisions can be considered 

persuasive if the action deals with a 

similar matter. 

THE EMPLOYMENT AGREEMENT AND 

NO AT-WILL EMPLOYMENT 

With this legal framework in mind, one 

of the more significant differences between 

U.S. and Canadian employment laws is the 

creation, content, and impact of the employment 

agreement between an employee 

and their employer. In Canada, as soon as a 

valid offer of employment is advanced by an 

employer and unambiguously accepted by 

the employee, a contract of employment is 

created. 

Once formed, an employment agreement 

will include, in addition to those 

terms agreed to between the employee and 

their employer, certain implied terms and 

obligations that are imposed by operation 

of legislation and common law. Among 

these implied terms will be the minimum 

standards of employment established in 

that respective jurisdiction (e.g. hours of 

work, vacation and holiday entitlements, 

overtime entitlements, leaves of absence, 

etc.), as well as the obligation to provide the 

employee termination notice for a without 

cause dismissal. 

At this point, it needs to be unequivocally 

stated that there is no “at-will” employment 

in Canada, nor is there an unqualified 

right to terminate an employee’s employment 

at any time for any reason. Rather, 

where the high bar of “just cause” for termination 

cannot be established, to dismiss employees, 

employers are obligated to provide 

them with termination notice or pay in lieu 

of notice. 

The only real exception to this notice 

requirement relates to probationary employees; 

although the duration of employee probationary 

periods is capped at three months 

in most Canadian jurisdictions, such that the 

availability of this exception is limited. In addition, 

for an employer to be able to rely 

upon a probationary period to dismiss an 

employee without cause and without providing 

notice, this option will also need to be 

expressly incorporated into the employee’s 

written contract of employment. 

It also bears mentioning that an employee 

and their employer cannot contractually 

opt out of the minimum standards of 

employment prescribed by the legislation in 

their respective jurisdiction. Language attempting 

to do this will be found void for 

non-compliance, which can become a significant 

issue where an employer has attempted 

to contractually limit an employee’s termination 

entitlements, as discussed below. 

TERMINATION ENTITLEMENTS 

Looking closer at the requirement for 

“notice or pay in lieu of notice,” the employment 

standards legislation in each jurisdiction 

specifies the minimum amount of 

advance notice or pay in lieu of notice that 

must be provided to employees to terminate 

their employment without cause. This statutory 

termination entitlement is based on an 

employee’s tenure with the employer prior 

to the date of dismissal, and typically ranges 

from one to eight weeks of notice. 

Nevertheless, unless an employee’s employment 

agreement contains a very specific 

and enforceable without cause 

termination clause that explicitly limits 

their termination entitlements to the jurisdiction’s 

statutory minimums (but not less 

than the minimums), an employee dismissed 

without cause will be entitled to 

“common law reasonable notice.” This is 

regularly overlooked or misunderstood by 

many employers. 

To be clear, common law reasonable 

notice subsumes, and is not in addition to, 

the statutory minimum notice, and is calculated 

based on an employee’s age, length of 

service, position, and the availability of similar 

employment. These factors serve to reflect 

the length of time it will take the 

dismissed employee to find new, comparable 

employment. 

The old rule of thumb for calculating 

common law reasonable notice was that an 

employee would be entitled to one month of 

notice or pay in lieu of notice per year of 

service with that employer, up to a notional 

ceiling of twenty-four months. While this approach 

has been judicially condemned and 

is no longer followed, it still provides a rough 

idea of the potential termination entitlements 

that can be associated with a without 

cause dismissal should there be no, or no effective, 

employment agreement in place. 

Lastly, and speaking of entitlements, 

where advance notice of an employee’s termination 

is not provided, the employee will 

instead be entitled to receive “pay in lieu of 

notice.” This includes their regular salary or 

wages, as well as compensation for their employment 

benefits, bonus or other incentive-based 

payments, certain allowances, 

and the other forms of remuneration the 

employee was entitled to by virtue of their 

employment. 

OTHER FORMS OF JOB PROTECTION 

Adding a further layer of complexity to 

Canadian employment law, employees are 

also entitled to protection from a without 

cause termination in relation to certain 

statutorily imposed leaves of absence and in 

circumstances where the termination relates 

to a protected ground of discrimination 

under the human rights legislation of 

the respective jurisdiction. 

Starting with the job-protected leaves, 

although these vary across Canadian jurisdictions, 

those that are most consistently in 

place include maternity/paternity leaves, 

compassionate care leaves, bereavement 

leaves, reservist leaves, and long-term injury 

or illness leaves. Recent trends have seen the 

number of leaves available in many jurisdictions 

increase, and just this past December, 

amendments to the Canada Labour Code (the 

federal employment standards legislation) 

were passed to introduce a new family responsibility 

leave, a family violence leave, 

and an Aboriginal practices leave. 

Canadian jurisdictions also prohibit discriminatory 

employment practices in relation 

to certain protected grounds, which 

typically include an individual’s age, gender, 

color, ancestry, religion, physical and mental 

disability, marital status, and sexual orientation. 

Protection in this context relates to 

both current employment and new employment, 

such as a refusal to hire based on a 

protected ground. Although there can be exceptions 

to this protection, these exceptions 

principally require that the employer either 

demonstrate that there is a bona fide occupational 

requirement for the specific position 

(e.g. firefighters must possess a certain level 

of fitness) or where accommodation of the 

protected ground extends past the point of 

undue hardship (i.e. where business operations 

would be materially impaired). 

APPROPRIATE REVIEW 

Bringing the preceding commentary 

together, the takeaway from this article 

should be that there are a whole host of employment-related 

risks and other nuances 

associated with each jurisdiction, whether 

federal or provincial. Accordingly, U.S. 

companies with Canadian workforces 

should ensure that their employment practices 

are regularly reviewed for compliance 

with the laws of the specific jurisdiction(s) 

in which they operate. 

Alex Hunt is an associate 

at Parlee McLaws LLP, in 

Edmonton, Alberta, 

Canada, and mainly practices 

in the area of labor and 

employment law. This includes 

regularly assisting 

provincially and federally 

regulated employers in litigating employment 

disputes and in preparing and vetting all manner 

of employment-related contracts and policies.

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Firms 

on theMove 

Lashly & Baer,p.c. 

ATTORNEYS AT LAW 

Former New Jersey Lieutenant Governor 

Kim Guadagno joined Connell Foley LLP 

as partner. She also has been appointed to 

the Boards of OceanFirst Financial Corp. 

and OceanFirst Bank N.A. OceanFirst 

Financial Corp.’s subsidiary, OceanFirst 

Bank N.A., founded in 1902, is a community 

bank with $7.5 billion in assets and 

branches located throughout central and 

southern New Jersey. 

Connell Foley’s Karen Painter Randall, 

chair of the firm's Cybersecurity and Data 

Privacy group, has been reappointed to the 

American Bar Association (ABA) 

Cybersecurity Legal Task Force by ABA 

President-Elect Robert M. Carlson. 

John Wilcox of Dysart Taylor Cotter 

McMonigle & Montemore, P.C. in 

Missouri was elected First Vice President of 

the Transportation Lawyers Association 

(TLA). Every year, the officers ascend to the 

next position up the line, meaning that 

Wilcox will become TLA’s president in 2020. 

He will be Dysart Taylor’s seventh TLA president, 

following Lee Reeder (1952), 

Wentworth Griffin (1962), Bill Taylor (1985), 

Alex Lewandowski (1994), Ken Hoffman 

(2000), and Pat McMonigle (2011). 

Robert J. Burnett, director and chair of 

Houston Harbaugh’s Oil and Gas practice 

has been re-elected to the Pennsylvania 

chapter of the National Association of 

Royalty Owners (NARO) Board of Directors 

for a third consecutive term; he has served 

on the board since 2012. He also was recently 

appointed to the Pennsylvania Bar 

Association’s Shale Energy Law Committee. 

Jaclyn E. Faulds, an associate attorney in 

Houston Harbaugh’s Corporate practice, was 

re-elected treasurer of the Allegheny County 

Bar Association’s Women in the Law Division. 

Attorneys from Missouri USLAW firms have 

formed a national foundation to help combat 

the Opioid crisis, St. Louis attorneys 

Patrick Foppe and Nancy Vidal both of 

Lashly & Baer, P.C., along with Kansas 

City, Missouri, attorney Ken Hoffman of 

Dysart Taylor Cotter McMonigle & 

Montemore, P.C. helped to form The 

National Zip-Out Unused Opioids 

Foundation along with the help of Dr. 

Susan E. Mackinnon of Washington 

University in St. Louis. The goal of their 

Foundation is to empower everyone to potentially 

save the life of a young person by 

increasing awareness of the dire need to 

clean these dangerous drugs out of medicine 

cabinets. Recently, the national Zip- 

Out Unused Opioids Foundation published 

a new educational brochure that shows how 

to safely dispose unused pain pills in compliance 

with the Federal Food and Drug 

Administration guidelines and federal law. 

The brochure instructs the public to place 

their unused opioid pills in a plastic food 

storage bag, add liquid dish detergent to 

dissolve the pills, and then throw away the 

plastic bag with the dish detergent mixed 

with dissolved pills inside. For more information, 

visit zipoutopioids.org. 

Lashly & Baer attorney John Fox Arnold 

received the William L. Weiss Award during 

the Bar Association of Metropolitan St. 

Louis Annual Senior Lawyers’ Luncheon. 

The award honors one of their own who has 

shown outstanding leadership in the bar 

and the legal community. He has been an 

attorney at Lashly & Baer, P.C. for over 48 

years and was a leader of the firm for 29 of 

those years. 

J. Cliff McKinney II of Quattlebaum, 

Grooms & Tull PLLC in Little Rock, 

Arkansas, received a Presidential Award of 

Excellence from the Arkansas Bar 

Association for his work as chair of the 

Governance Committee. 

Thomas G. Williams of Quattlebaum, 

Grooms & Tull PLLC in Little Rock, 

Arkansas, has been reappointed by Lt. Gov. 

Tim Griffin to serve a second six-year term 

on the Arkansas Judicial Discipline and 

Disability Commission, a state constitutional 

agency created by the adoption of Arkansas 

Constitutional Amendment 66 in 1988. The 

Commission strives to maintain public confidence 

in the judiciary and promote greater 

awareness of proper judicial behavior. 

SmithAmundsen’s Sulema Medrano received 

the Hispanic Lawyers Association of 

Illinois (HLAI) Latina Attorney of the Year 

award. 

Law360 has ranked several USLAW member firms among its 2018 list of “Best Law Firms for 

Female Attorneys.” In the category of firms with 150-299 lawyers, Hanson Bridgett LLP 

(4) in San Francisco and SmithAmundsen (10) in Illinois were included. In the 20-149 

lawyer category, Franklin & Prokopik, P.C. in Maryland ranked seventh on the list. For 

this national ranking, Law360 surveyed more than 300 U.S. firms. Firms were first grouped 

according to size, then firms that fell below the average in various categories were deemed 

ineligible for the ranking. Remaining firms were ranked using a formula that equally weights 

the percentage of non-partners and percentage of total partners who are women.


Matthew J. Brandes, an attorney with Simmons 

Perrine Moyer Bergman PLC (SPMB) in Iowa, received 

the “Voices for Justice” award at the Iowa Supreme 

Court’s Honors 

Luncheon held in 

conjunction with the 

Iowa State Bar 

Association’s Annual 

Meeting in Des 

Moines. This is the 

first year for the 

award. Eight honorees 

were selected 

to recognize legal 

careers marked by 

outstanding service 

to the Iowa Judicial 

Branch and the 

cause of justice. Pictured: Matthew Brandes and his 

wife, Jeanne. 

Hall Booth Smith, P.C. (HBS) attorneys and staff participated 

in the 15th Annual ServiceJuris Day this past 

June. The enthusiastic group of HBSers pictured were 

able to make a difference at Price Middle School in 

Atlanta by landscaping and painting lanes in the parking 

lot for the upcoming school year. ServiceJuris Day 

is coordinated by ServiceJuris, Inc. – a nonprofit lead 

by volunteers from across the Atlanta legal community. 

of USLAW 

Attorneys and staff from Sweeny, Wingate & Barrow, 

P.A., in South Carolina competed in the Palmetto 200, 

a statewide relay race which raises funds for The 

Leukemia & Lymphoma Society. Team Tort-Us III completed 

the 207.5-mile course in 29 hours and 22 minutes, 

holding a pace of 8:29/mile. 

Ronald McDonald House Charities of Southern West 

Virginia honored Tom Flaherty of Flaherty 

Sensabaugh Bonasso PLLC as part of their annual 

McGala fundraiser earlier this year. A longtime supporter, 

Tom was honored for his 30+ years of service 

to RMHC of Southern West Virginia. (Pictured L-to-R: 

Evan Osborn, development director for RMHC; Tom 

and Paula Flaherty; and Mike Bonasso) 

Franklin & Prokopik employees volunteer for Living 

Classroom’s Healthy Cities “Game Changers” program. 

It is an initiative to bring nutrition, fitness, and wellness 

education to a targeted area of East Baltimore, 

Maryland, that takes place at the Under Armour 

House. 

Jones, Skelton & Hochuli, P.L.C. (JSH) in Arizona cycled 

for a cause, namely for kids at Phoenix Children’s 

Hospital. The Second Annual “Tour de Ren” was hosted 

by Hines, the building management company for the 

Renaissance Square Towers, where JSH is located. JSH 

employees joined 40 other Renaissance Square tenants 

for a day of cycling on stationary bikes in an effort 

to support initiatives to cure and treat Cerebral Palsy, 

among other diagnoses. Phoenix Children’s Hospital 

(PCH) is one of the largest children’s hospitals in the 

country and provides the most comprehensive pediatric 

care in the state.


Poyner Spruill partner and former North 

Carolina Congressman Mike McIntyre 

(pictured on the right) has been honored 

for a lifetime of public service by the 

North Carolina Bar Association with The 

Chief Justice I. Beverly Lake Jr. Public 

Service Award. 

To thank his colleagues for supporting him and his family when he went 

through 30 weeks of training in the Army National Guard, Army Specialist 

Anthony Frangella, a paralegal at Rivkin Radler LLP in Uniondale, New 

York, nominated seven of them for a Patriot Award. The award is given 

by the Department of Defense’s Employer Support for the Guard and 

Reserve program (ESGR) Pictured l-r: Staff Sergeant Alex Williams 

(ESGR), Army Specialist Anthony Frangella, Liza Gilmartin (accepting the 

award on behalf of Michael Sirignano), Michael Shea (accepting the award 

on behalf of Jean McCann), Frederick J. Esposito, Tamika Parker, Anthony 

LaMonte, Martha Raskin, Wendy Belmonte, Evan H. Krinick and ESGR New 

York Area Chair Emil Baker. 

Mike Resis of SmithAmundsen was recognized 

at the Illinois Association of 

Defense Trial Counsel’s (IDC) Annual 

Meeting and Awards Luncheon for his 

service as the outgoing president of the 

IDC. Also pictured is his colleague Britta 

Sahlstrom who received the Rising Star 

award. 

John E. Tull III of Quattlebaum, Grooms 

& Tull PLLC, pictured with Arkansas Press 

Association (APA) board member Ellen 

Kreth, received the Freedom of 

Information Award from the APA for his 

dedication and service to utilize and defend 

the Freedom of Information Act 

(FOIA). 

Simmons Perrine Moyer Bergman PLC attorneys 

Darrel and Paul Morf (along with 

sibling Andrew) have been selected to cochair 

the 2018 United Way of East Central 

Iowa campaign. Photo L to R: Paul, Darrel 

and Andrew Morf. 

Tom DeMatteo of ABC Bus Companies, Inc. was named the 2018 recipient 

of the USLAW NETWORK Bill Burns Award, which recognizes a client 

who has shown outstanding service and dedication to USLAW. (Pictured 

L-to-R: Mark Solheim (Larson • King LLP), Tom DeMatteo, John Cromie 

(Connell Foley LLP)) 

Justin Cumming, an attorney with Lewis Roca 

Rothgerber Christie, received the Volunteer of 

the Year award from the Colorado Cattleman’s 

Association. 

Earl W. Houston, II, (pictured) a director 

with Martin, Tate, Morrow & 

Marston, P.C., has been awarded the 

Sam A. Myar Jr. Memorial Award. 

The award is given each year to an 

attorney 40 years old or younger 

who has rendered outstanding personal 

service to the legal profession 

and the Memphis community. 

J.R. Martinez, actor, author, motivational 

speaker, and retired U.S. Army 

soldier, alongside USLAW Chair John 

Cromie during the Spring 2018 

USLAW NETWORK Client 

Conference. Martinez served as the 

event’s keynote speaker. 

Catherine S. Loeffler, a senior associate 

in Houston Harbaugh’s 

Litigation practice helped coordinate 

and participate in a “Strike Out 

Hunger” bowling fundraiser benefitting 

the Attorneys Against Hunger 

campaign of the Allegheny County 

Bar Foundation. Houston Harbaugh 

was a sponsor of the event. 

Lashly & Baer, P.C. attorney Kenneth C. Brostron received 

the inaugural Missouri Lawyers Weekly’s ICON 

Award, June 1, 2018. Ken was one of 25 men and 

women attorneys, judges and professors across 

Missouri over the age of 60 who was recognized for 

their notable sustained success and strong leadership 

within and outside the field of law. 

Olympic gymnast Shannon Miller is 

shown here with Robyn McGrath 

(Sweeney & Sheehan, P.C), Kelly 

Williams (Houston Harbaugh, P.C.), 

Erin Diaz (Wicker Smith O'Hara 

McCoy & Ford P.A.) and Tanya 

Petermann (SmithAmundsen LLC) 

at the 2018 Women’s Connection.


PRO 

BONO 

SPOTLIGHT 

Bingham Greenebaum Doll LLP 

(Louisville, KY) 

A handicapped woman, allegations 

of police misconduct, and a 12-year 

quest for justice. It reads like a true 

crime novel, and for Bingham 

Greenebaum Doll LLP’s Lauren 

Nichols, an attorney in the 

Litigation Department of their 

Lexington office, it made for a 

memorable pro bono case. 

In October 1998, Kyle 

Breeden’s body was pulled out of 

the Kentucky River and his onagain, 

off-again girlfriend, Susan 

Jean King, was called in for questioning. 

King had lost one of her 

legs in an accident years before 

Breeden’s death, and police eventually 

dismissed her as a suspect. The 

case went cold for almost seven 

years, until Kentucky State Police 

picked up the case in late 2006. Six 

months later King was indicted for 

murder and tampering with physical 

evidence. 

King entered an Alford plea, a 

claim of neither guilt nor innocence, 

and received a 10-year sentence for 

second-degree manslaughter with 

the possibility of parole. If not for an 

intervention of a detective from 

Louisville Metro Police Department 

five years later, King could still be in 

prison. BGD’s Nichols assisted the 

Innocence Project in using a confession 

obtained by the Louisville 

Metro Police Department to exonerate 

King. In connection with this 

case, the Kentucky Court of 

Appeals has recognized that Alford 

pleas, in addition to jury verdicts, 

may be reviewed and overturned 

based on new evidence. 

Hall Booth Smith, P.C. (Atlanta, GA) 

Hall Booth Smith, P.C. (HBS) is partnering 

with Children’s Rights, Inc., a 

nonprofit organization that has 

helped protect the legal rights of 

more than 100,000 children who 

have been abused or neglected. 

HBS will provide pro bono legal 

work, staff support and office space 

to the organization. 

Children’s Rights does advocacy 

and legal work to ensure children 

who are under state 

supervision, such as foster care or 

juvenile justice programs, have a 

safe and healthy childhood. That includes 

bringing legal action to keep 

siblings together in foster care, expand 

access to health care and 

mental health therapies, minimize 

disruptive moves while in foster 

care, reduce institutional placements 

and ensure access to education 

– all of which can improve the 

safety, permanency and well-being 

of vulnerable children. 

“Across the South children are 

better off today because of the 

kindness and generosity of attorneys 

and staff at Hall Booth Smith,” 

said Christina Remlin, lead counsel 

for Children’s Rights, which is setting 

up a Southern headquarters in 

Atlanta. “Each hour of time invested 

in protecting these children helps 

give them a more stable upbringing 

that continues to pay dividends for 

the rest of their lives.” 

Contributing time and legal 

knowledge to Children’s Rights exemplifies 

the servant leadership culture 

that has been a guiding 

principle at Hall Booth Smith since 

the firm’s earliest days. 

“This cause is close to our 

hearts, and we are humbled to help 

protect children when they are at 

their most vulnerable,” said John E. 

Hall, Jr., a founding partner of Hall 

Booth Smith. “No child should feel 

unsafe or unwanted. Better care is 

the first step toward creating a 

brighter future for thousands of 

children who need our support the 

most.” 

Rivkin Radler LLP (Uniondale, NY) 

The Nassau County Bar Association 

(NCBA), The Safe Center LI (TSCLI) 

and Nassau Suffolk Law Services 

(NSLS) have named Rivkin Radler a 

top law firm in pro bono service for 

2017. This is the fourth consecutive 

year the firm has been recognized. 

The annual award, which ranks 

law firms by categories based on 

size, also ranks firms within their 

peer group based on the total number 

of pro bono service hours. 

Sixteen of the firm’s attorneys 

received recognition, including 

Brian Bank, Michelle Bholan, William 

Cornachio, Ryan Goldberg, Jeffrey 

Greener, Ada Kozicz, Matthew 

Lampert, Sean McAloon, Frank 

Misiti, Jason Romeo, Alan Rutkin, 

Jonathan Salm, Brian Schlosser, 

Matthew Spero, Frank Valverde and 

John Vobis Jr. 

“Rivkin Radler has a long tradition 

of public service,” said Alan 

Rutkin, head of the firm’s Pro Bono 

Committee. “From partners to associates, 

our attorneys understand 

that pro bono work rounds out their 

practice, making them better 

lawyers and human beings.” 

Access to Justice Committee 

Co-Chair Joseph R. Harbeson, said, 

“Attorneys, as professionals, have a 

duty to help those less fortunate try 

to obtain justice. The top Long 

Island law firms and attorneys we 

recognize today are the leaders 

that embrace this calling.” The 

NCBA Access to Justice Committee 

is a joint effort of the NCBA, TSC LI, 

NSLS and other legal service 

providers. 

Snyder Burnett Egerer, LLP 

(Santa Barbara, CA) 

Barry Snyder of Snyder Burnett 

Egerer, LLP in Santa Barbara, 

California, acted as appellate counsel 

for a trust beneficiary who had 

received an adverse ruling at trial. 

In total, Barry and the firm invested 

approximately 90 hours of time, reviewing, 

researching and writing 

appellate briefs and arguing the 

matter to the Court of Appeal. 

Williams Kastner (Seattle, WA) 

Meredith E. Dishaw and Reshvin P. 

Sidhu of Williams Kastner in Seattle 

recently provided a pro bono representation 

on behalf of George Clark 

in his clemency petition to 

Washington State’s Clemency and 

Pardons Board. In the clemency petition, 

they sought commutation on 

behalf of Mr. Clark of his life imprisonment 

sentence under the three-


strikes law. Mr. Clark has been serving 

almost 17 years in prison for a 

second-degree robbery, the maximum 

sentence of which is 10 years. 

Because it was Mr. Clark’s third strike, 

however, he was sentenced to life. 

Meredith and Resh first began 

working with Mr. Clark in May 2017 

and submitted the written petition 

on his behalf last December. After reviewing 

the petition, Mr. Clark was 

granted a hearing before the 

Clemency & Pardons Board. The 

hearing was on Friday, June 8, and 

they appeared on Mr. Clark’s behalf. 

Following their presentation, 

the Board concluded that there were 

extraordinary circumstances justifying 

Mr. Clark’s request for commutation 

and voted, 3-1, to recommend to 

Governor Inslee that Mr. Clark’s petition 

for clemency be granted. While 

the commutation still awaits the 

Governor’s decision, this is a major 

victory on behalf of Mr. Clark. He is 

overjoyed and is very grateful. 


(San Francisco, CA) 

For the second year in a row, 

Hanson Bridgett’s Government 

Group section partnered with Centro 

Legal de la Raza to host a limited 

scope asylum clinic. Centro Legal’s 

immigration practice is focused on 

serving the needs of our most vulnerable 

community members, including 

families living in poverty, 

long residing undocumented immigrants 

and families, youth, victims of 

violent crimes, asylum seekers, and 

detained individuals in removal proceedings. 

In addition to the firm’s 

Government Group attorneys, 

Hanson Bridgett’s summer associate 

class, along with several other attorneys 

from other firm practice sections 

participated in the clinic. 

Attorneys, summer associates, and 

Government Group staff members 

provided assistance to numerous 

asylum applicants and their families. 

In addition to furthering the 

Government Group’s commitment to 

pro bono services, this event supports 

Hanson Bridgett Managing 

Partner’s pro bono initiative, which is 

focused on supporting families 

deeply impacted by current immigration 

policies and practices. 

Pierce Couch Hendrickson 

Baysinger & Green, L.L.P. 

(Oklahoma City, OK) 

Since 2016, Elizabeth R. Sharrock has 

fulfilled a lifelong passion, serving as 

pro bono counsel for the Oklahoma 

Alliance for Animals (“OAA”). OAA 

is a non-profit entity that promotes 

low or no-cost spay/neuter and microchip 

programs as well as the 

“Unchain OK” program which is tailored 

to reduce abuse and neglect of 

dogs. In this role, Elizabeth has negotiated 

numerous plea agreements 

on behalf of low income and often 

unsophisticated defendants who find 

themselves caught up in the “assembly 

line” processing of dog-related 

municipal charges 

Through Elizabeth’s pro bono 

work, families are educated on 

proper and lawful care of their pets 

and ultimately are reunited with 

dogs that have been seized by municipal 

authorities. OAA carefully selects 

the cases that Elizabeth is 

asked to handle so as to maintain the 

utmost credibility before municipal 

judges, fostering long-term goals of 

educating the public on issues of animal 

abuse and neglect, responsible 

pet ownership and reduction of unjustified 

euthanizations. 

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Successful 

Recent 

USLAW 

Law Firm 

Verdicts 


(Indianapolis, IN) 

A Bingham Greenebaum Doll LLP (BGD) 

trial team led by Bri Clark and Greg 

Neibarger, with assistance from Meaghan 

Haller, was successful in upholding their 

trial verdict before the Indiana Court of 

Appeals in a lengthy closely held corporation 

dispute. 

The case involved a dispute over a family 

owned business. The family relationship 

soured in the early 1990s and the plaintiffs 

left to start a competing entity (while remaining 

as shareholders in the company). 

As a result of their departure, the family 

members were embroiled in a number of 

lawsuits filed and resolved back in the 1990s 

– most of which were so old the files have 

since been destroyed. When the plaintiffs’ 

competing business later went under, they 

became upset at BGD’s client’s success with 

the ongoing company, so they again sued 

for more than $17MM. Plaintiffs’ claimed 

that BGD’s clients breached their fiduciary 

duties by, among other things, “engaging in 

conduct that is designed solely to dilute 

plaintiffs’ ownership interest, divert funds 

through the creation of bogus companies to 

the exclusion of the plaintiffs and provide 

hidden dividends to the exclusion of the 

plaintiffs through payments to companies 

that the defendants are sole owners and exorbitant 

excess officer compensation to the 

defendants.” These were the same claims 

that were presented or that could have been 

presented in the previous lawsuit. 

After substantial legwork to recover any 

remaining portions of the old files, including 

having the court literally dig court files 

and the RJO out of its attic, the court bifurcated 

the case and held a bench trial in 

December 2016 on BGD’s clients’ res judicata 

and collateral estoppel defenses. The 

trial court issued a 45-page order, largely 

adopting BGD’s proposed findings and issued 

a judgment in BGD’s client’s favor on 

all of plaintiffs’ claims. On appeal, the trial 

court’s judgment was affirmed in all respects, 

and plaintiffs’ subsequent petition 

for rehearing was denied. 


(Louisville, KY) 

A Bingham Greenebaum Doll LLP (“BGD”) 

trial team led by Benjamin J. Lewis, with the 

assistance of Rachel A. Washburn, successfully 

obtained a bench trial verdict in 

Jefferson Circuit Court in Louisville, 

Kentucky, on behalf of longtime client 

Hillerich and Bradsby Co. (“H&B”). 

The case centered around the sale of 

H&B’s Louisville Slugger brand to Wilson’s 

Sporting Goods Company for $70 million. 

The considerable size of this transaction 

triggered a statutory right for H&B’s shareholders 

to dissent from the sale and demand 

payment for the fair value of their 

stock as calculated immediately prior to the 

transaction. After reviewing historical financial 

performance and obtaining a fair 

value opinion from Hilliard Lyons, H&B 

tendered payment to each dissenting shareholder 

for $90 per share – what it determined 

to be the fair value of their stock 

immediately prior to the transaction. Some 

of those shareholders disagreed with H&B’s 

fair value determination and demanded 

payment of $700 per share – the sale price 

for the Louisville Slugger brand approximately 

divided by the number of shares. 

The shareholders who pursued their demand 

through bench-trial ultimately lowered 

their demand for payment between 

$450 to $492 a share, and argued that the 

fair value opinion did not properly calculate 

the shareholder’s value of shares as a going 

concern. 

BGD proved that the fair value opinion 

was performed in compliance with Kentucky 

precedent and commonly accepted valuation 

principals. BGD also demonstrated that 

the value proposed by the dissenting shareholders 

was inconsistent with H&B’s historical 

financial statements and performance. 

The Court agreed – entering a 25-page opinion 

that largely adopted BGD’s proposed 

findings of fact and conclusions of law. The 

opinion addresses an ambiguity in Kentucky 

law regarding whether a fair value determination 

by a privately held corporation can 

consider the market value of shares and entity 

level discounts. 

Fee, Smith, Sharp & Vitullo LLP 

(Dallas, TX) 

On March 22, 2018, FSSV senior partner 

Michael Sharp and senior counsel Robyn 

Wise obtained a defense verdict for FSSV's 

client in state court in Collin County, Texas. 

The case arose from a trucking accident 

that occurred in McKinney, Texas. FSSV's 

motor carrier client was operating a tractortrailer 

northbound on I-75 when their 

driver encountered traffic that suddenly 

stopped for road construction. The truck 

driver contended that the construction restricted 

his view of traffic traveling ahead of 

him. The truck driver took evasive action, 

but collided with the rear of the Plaintiff's 

vehicle. Plaintiff argued that FSSV's client 

was negligent for failing to maintain a 

proper lookout, failing to apply his brakes 

in a reasonable manner, failing to maintain 

proper control of his vehicle and driving 

while distracted. Plaintiff claimed injuries to 

her neck, back and lower extremities. She 

received extensive medical care and south 

recovery for past and future medical expense, 

impairment, pain and suffering. 

Plaintiff’s counsel demanded $1,000,000 

prior to the start of trial. FSSV asserted a 

sudden emergency defense although the 

presiding judge refused to submit that definition 

to the jury. Nevertheless, the jury 

found no negligence on the truck driver 

after deliberating for approximately 30 minutes. 

Flaherty Sensabaugh Bonasso PLLC 

(Charleston, WV) 

Ted Martin and Ryan Brown successfully defended 

a pain management physician in the 

Circuit Court of Wood County, West Virginia. 

The plaintiff alleged that our client failed to 

obtain informed consent and negligently 

performed an occipital nerve block. 

Plaintiff claimed that the medication used 

caused a neurological injury that resulted in 

her becoming disabled. On June 11, 2018, 

after a four-day trial, the jury deliberated for 

less than 1 hour before returning a verdict 

finding that our client met the standard of 

care. The jury trial was held before Judge 

Wharton. Wood County Civil Action # 16- 

C-472. 

Klinedinst PC (San Diego, CA) 

Klinedinst shareholder Susan K. Chelsea 

successfully appealed and overturned a Cal- 

OSHA willful citation. The client, a general 

contractor, was cited for violating California 

Code of Regulations, title 8, section 1630(a) 

for exposing employees to working above 

36 feet in height in a building without an 

operable construction passenger elevator to 

gain access to the upper floors. The appeal 

was heard by an administrative law judge for 

the Department of Industrial Relations 

Occupational Safety and Health Appeals 

Board. 

When the citation was issued there was 

no operable and permitted passenger elevator 

for the five-story building.


Ms. Chelsea successfully argued the 

client did not violate Section 1630(a) because 

the building at issue (built on a steep 

slope) measured 59 feet 10 inches at the 

northeast side of the building where the primary 

construction entrance was located, 

and therefore the building was not 60 feet 

or more in height. She further argued it 

was immaterial the building height exceeded 

60 feet in height as measured at the 

three other sides of the building because 

the only relevant measurement was from 

the primary construction entrance. 

The Division of Occupational Safety 

and Health (“DOSH”) that prosecuted the 

citation claimed the building exceeded 60 

feet in height at other construction entrances 

and disputed the location of the primary 

construction entrance. The client 

introduced evidence of the height of the 

building as measured from ground level at 

the primary construction entrance. DOSH 

introduced the building plans showing the 

building exceeded 60 feet in height at locations 

other than the primary construction 

entrance. DOSH also argued because the 

client originally believed the building 

height exceeded 60 this was proof of how 

the building should be measured and established 

a willful violation of Section 1630(a). 

After a one-day hearing, the Administrative 

Law Judge issued an opinion finding 

the construction entrance identified by 

the client was the primary construction entrance. 

She further held DOSH did not 

meet its burden of establishing the building 

was 60 feet or more in height as measured 

from ground level of the primary construction 

entrance to the highest structural 

point. Because the building did not exceed 

60 feet in height, no passenger elevator was 

required. The citation was dismissed and 

the penalty vacated. 

This was a significant victory for the 

general contractor client. If the citation 

had been affirmed the client would be required 

to disclose the willful citation to potential 

clients, impairing its ability to obtain 

future contracts. 

Murchison & Cumming 

(Los Angeles, CA) 

A Los Angeles Superior Court Jury returned 

with a defense verdict in favor of a skilled 

nursing facility after a 10-day trial in which 

plaintiffs sought to recover more than $15 

million in compensatory as well as punitive 

damages. Murchison & Cumming’s Dan L. 

Longo and Mary C. Trinh represented the 

defendant skilled nursing facility and defendant 

corporate entities. 

The plaintiff was admitted to the 

skilled nursing facility to recover from brain 

surgery that was performed after a series of 

falls at home. On admission to the skilled 

nursing facility, the plaintiff was noted to 

have four skin ulcers. Three months later, 

three of the skin ulcers healed but the sacral 

decubitus ulcer evolved from a Stage II to 

an unstageable/Stage IV ulcer. 

At trial, the plaintiff contended that 

purported poor care, reckless neglect and 

the defendants placing "profits over people" 

led to the progression of the sacral decubitus 

ulcer from a Stage II to an infected, lifethreatening, 

"baseball-sized" Stage IV ulcer. 

The plaintiff's daughter and son asserted 

separate claims for negligent infliction of 

emotional distress and intentional infliction 

of emotional distress attributed to the neglect 

of their mother and the facility's alleged 

attempts to "cover up" the progression of 

the sacral decubitus ulcer. 

There was no dispute that the sacral decubitus 

ulcer evolved. However, the defense 

successfully argued that the progression of 

the sacral ulcer was medically unavoidable 

due to the plaintiff's significant underlying 

serious health issues which, combined with 

the location of the ulcer, interfered with the 

healing process. Mr. Longo and Ms. Trinh 

also presented evidence that an interdisciplinary 

team closely monitored and treated 

the ulcer and that the family received regular 

updates regarding the plaintiff's condition 

and the care provided. 

The jury returned with a defense verdict 

as to all causes of action after only three 

hours of deliberation. 

Rivkin Radler LLP (Uniondale, NY) 

Rivkin Radler secured a victory in the first 

appellate case to interpret Insurance Law § 

3408(c) since a 2014 amendment. 

Under Insurance Law § 3408(c), a 

property insurer or an insured can demand 

that appraisers selected by the parties decide 

disagreements over the “amount of the 

loss.” Typically, insurers argue that an appraisal 

is confined to an agreed scope of 

damage, and resist submission to appraisal 

in situations where the “scope of damage” 

or required repairs are disputed. 

In response to intense lobbying efforts 

from the plaintiffs’ bar, the New York 

Legislature amended the statute in 2014 to 

permit appraisers to decide the “extent of 

the loss or damage.” The Legislature also acknowledged 

that an appraisal is only appropriate 

to determine issues relating to 

damages and that “an appraisal shall not determine 

whether the policy actually provides 

coverage for any portion of the 

claimed loss or damage.” After the amendments 

became effective, insureds aggressively 

pursued appraisal, even in cases where 

coverage was disputed by the insurer. 

No appellate court had interpreted the 

amendments to the statute until the First 

Department issued its opinion in Louati v 

State Farm Fire and Casualty Co. (2018 NY 

Slip Op 03908 [May 31, 2018]). In Louati, 

the Court affirmed the dismissal of the insured’s 

Petition to Compel Appraisal. While 

the insured argued that the only issue to be 

decided was the “scope of damages,” State 

Farm showed that an appraisal was not appropriate 

in this case since there were unresolved 

issues relating to the cause of the 

loss and whether or not the insured complied 

with certain provisions of the policy 

relating to exhibiting the damaged property. 

In ruling in our client’s favor, the Court 

adhered to the longstanding principle that 

a court must first resolve policy coverage issues 

before the parties can seek an appraisal. 

The Court also reaffirmed 

well-settled New York law, as well as the plain 

language of the amendment, that coverage 

issues cannot be decided in an appraisal. 

The decision provides guidance and clarity 

for those seeking to rely on New York’s appraisal 

statute. 

Attorneys Cheryl F. Korman, Michael 

A. Troisi, Michelle A. Bholan and Henry M. 

Mascia managed this case. 


(Santa Barbara, CA) 

After three weeks of jury trial in San 

Bernardino County, Barry Snyder and 

Jessica Farley of Snyder Burnett Egerer, LLP 

secured a defense verdict on April 30, 2018, 

in a race retaliation, whistleblower, and 

defamation case. Plaintiff, a Caucasian 

woman, claimed she was terminated from 

C.R. England because she complained to 

HR that she was underpaid and that her 

Hispanic supervisor favored Hispanic employees 

when it came to hiring, scheduling, 

speaking Spanish in the office, and celebrating 

staff birthdays. 

To prove her case, plaintiff relied 

largely on a parade of former employees--all 

of them Caucasian and female--to disparage 

plaintiff's Hispanic supervisor. C.R. England 

refuted each of these witnesses by calling 

former, current, Caucasian, Hispanic, 

Filipino, African-American, male and female 

employees to show that plaintiff's complaints 

were unsubstantiated. 

The defense presented undisputed evidence 

that plaintiff was terminated because 

she came to work without a required doctor's 

note after telling her supervisor that 

she had a "highly contagious" disease. In 

doing so, she violated company policy and 

a direct order by her supervisor. At trial,


plaintiff admitted that she never had this 

highly contagious disease. Although she 

never told her supervisor the truth, plaintiff 

contended that the company should have 

investigated whether she was actually ill before 

terminating her. 

Claiming that C.R. England defamed 

her during the termination and intentionally 

inflicted emotional distress, plaintiff 

asked the jury for $2.3 million in non-economic 

damages and roughly $500,000 in 

economic damages. Had the jury found that 

C.R. England acted maliciously, punitive 

damages were also on the table. After a little 

over a day of deliberation, the jury returned 

a defense verdict. 

Traub Lieberman Straus & 

Shrewsberry LLP (Hawthorne, NY) 

Traub Lieberman Straus & Shrewsberry 

LLP (”TLSS”) partner Lisa M. Rolle obtained 

a defense verdict in the trial of 

Robins v. EBM Long Beach and Aqua 

Construction Corp., in the Supreme Court 

of the State of New York, Nassau County, on 

May 7, 2018. Plaintiff Wendy Robins claimed 

to have sustained severe injuries when she 

tripped and fell as a result of a hazardous 

condition at the construction site owned by 

EBM Long Beach, which had hired general 

contractor Aqua Construction Corp. to erect 

a high-rise luxury condominium building on 

the boardwalk in Long Beach, New York. 

Plaintiff claimed that the sidewalk curb was 

2¼ inches higher than the driveway apron 

adjacent to the curb, creating a latent, dangerous, 

and hazardous condition; and further 

claimed that the driveway apron should 

have been barricaded by a fence, preventing 

entry. As a result of the accident, Plaintiff 

underwent two surgical procedures and was 

declared totally disabled by Social Security 

Disability, compelling her into early retirement 

from her occupation as an adaptive 

physical education teacher for the City of 

New York. Her spouse claimed loss of consortium. 

Representing both the owner and the 

general contractor, Ms. Rolle argued that 

the construction site was properly barricaded 

and that the height differential between 

the curb and the driveway apron did 

not pose an unsafe condition. Further, Ms. 

Rolle argued that Plaintiffs were aware that 

the driveway apron was part of the construction 

site because they resided next door, but 

disregarded the fencing surrounding the remainder 

of the premises. Finally, Ms. Rolle 

presented testimony of a toxicologist, which 

supported her argument that Plaintiff’s 

blood alcohol level of .12 impaired her 

judgment and balance. 

The jury returned a unanimous verdict 

in favor of TLSS’ clients, dismissing the action. 

Wicker, Smith, O’Hara, McCoy & 

Ford, P.A. (Orlando and Tampa, FL) 

Raymond Watts and Erin Diaz of the 

Orlando and Tampa offices of Wicker, 

Smith, O’Hara, McCoy & Ford, P.A. recently 

obtained a defense verdict in a nursing 

home negligence case. The resident was admitted 

into the Defendant’s facility for rehabilitation 

services following a series of 

falls resulting in a general decline as well as 

a compression fracture. During the residency, 

Plaintiff argued that the facility 

missed developing signs and symptoms of 

diverticulitis. Plaintiff further argued that 

the diverticulitis, left untreated, ruptured 

thereby resulting in sepsis and other deteriorating 

signs and symptoms, which were 

also missed. When the resident was transferred 

to an area hospital, Plaintiff argued 

that the sepsis was too far advanced due the 

facility’s delay resulting in the resident’s 

death. Argument was presented on behalf 

of the Defendant facility regarding pre-existing 

conditions that were consistent with 

the resident’s overall status and physical 

presentation. The Defendant also presented 

causation experts to establish the 

spontaneous nature of the rupture based 

upon available radiological imaging which 

resulted in the resident’s death despite any 

timing of diagnosis. Plaintiff asked for $2 

million in closing. The jury returned a defense 

verdict in approximately 30 minutes 

. 

Williams Kastner (Seattle, WA) 

In April 2018, Rod Umberger of Williams 

Kastner in Seattle obtained a defense verdict 

in a trial held in Kittitas County, 

Washington, where he defended Quanta 

Services/Potelco, Inc., a national utility construction 

services company. The lawsuit 

arose from a catastrophic motorcycle/commercial 

vehicle collision on Highway 10 

near Ellensburg, Washington. Potelco line 

and bucket trucks were replacing telephone 

poles along the highway after a recent fire 

when one of the drivers turned left across 

the highway and collided with a Harley 

Davidson being operated by the plaintiff. 

The plaintiff was severely injured in the accident 

with multiple open bone fractures, 

back and neck injuries and a TBI, and he 

was airlifted to a Seattle-area hospital where 

he remained in a rehabilitation unit for several 

months following multiple surgeries. 

The medical expenses incurred as a result 

of the accident were over $250,000. 

Successful 

Recent 


Law Firm 

Transactions 

Flaherty Sensabaugh Bonasso 

PLLC (Charleston, WV) 

Chris Brumley and Jim Lane acted as legal 

counsel to Mohegan Energy Trustees, LLC 

in a $100 Million Strategic Partnership 

with Orion Energy Partners. Mohegan acquired 

a low vol metallurgical coal operation 

and related equipment in West Virginia from 

Met Resources, LLC. Mohegan, through its 

wholly owned subsidiary Cornerstone 

Minerals, LLC ("Cornerstone"), announced 

the acquisition on May 16, 2018. Following 

the acquisition, Mohegan is focused on 

ramping up production, lowering costs, 

improving existing infrastructure, and 

constructing a 350 ton/hour processing 

plant and additional rail out facility. 

Hinckley Allen (Hartford, CT) 

Hinckley Allen is representing First 

Connecticut Bancorp, Inc. (NASDAQ: 

FBNK), the holding company for 

Farmington Bank, in connection with First 

Connecticut Bancorp’s acquisition by 

People’s United Financial, Inc. (NASDAQ: 

PBCT), the holding company for People’s 

United Bank, N.A., in an all-stock transaction 

valued at approximately $544 million. 

Completion of the transaction is subject to 

customary closing conditions, including 

receipt of regulatory approvals and the approval 

of First Connecticut Bancorp, Inc. 

shareholders.


ABOUT USLAW NETWORK 

2001. The Start of Something Better. 

Mega-firms...big, impersonal bastions of 

legal tradition, encumbered by bureaucracy 

and often slow to react. The need for an 

alternative was obvious. A vision of a network 

of smaller, regionally based, independent 

firms with the capability to respond quickly, 

efficiently and economically to client needs 

from Atlantic City to Pacific Grove was born. 

In its infancy, it was little more than a possibility, 

discussed around a small table and 

dreamed about by a handful of visionaries. 

But the idea proved too good to leave on the 

drawing board. Instead, with the support of 

some of the country's brightest legal minds, 

USLAW NETWORK became a reality. 

Fast-forward to today. 

The commitment remains the same as 

originally envisioned. To provide the highest 

quality legal representation and seamless 

cross-jurisdictional service to major corporations, 

insurance carriers, and to both large 

and small businesses alike, through a 

network of professional, innovative law 

firms dedicated to their client's legal 

success. Now as a diverse network with more 

than 6,000 attorneys from more than 60 

independent, full practice firms with roots in 

civil litigation across the U.S., Canada, Latin 

America and Asia, and with affiliations with 

TELFA in Europe, USLAW NETWORK 

remains a responsive, agile legal alternative 

to the mega-firms. 

Home Field Advantage. 

USLAW NETWORK offers what it calls The 

Home Field Advantage which comes from 

knowing and understanding the venue in a 

way that allows a competitive advantage – a 

truism in both sports and business. 

Jurisdictional awareness is a key ingredient 

to successfully operating throughout the 

United States and abroad. Knowing the local 

rules, the judge, and the local business and 

legal environment provides our firms’ clients 

this advantage. The strength and power of an 

international presence combined with the 

understanding of a respected local firm 

makes for a winning line-up. 

A Legal Network for Purchasers of 

Legal Services. 

USLAW NETWORK firms go way beyond 

providing quality legal services to their 

clients. Unlike other legal networks, USLAW 

is organized around client expectations, not 

around the member law firms. Clients 

receive ongoing educational opportunities, 

online resources including webinars, 

jurisdictional updates, and resource libraries. 

We also provide a semi-annual USLAW 

Magazine, USLAW DigiKnow, which features 

insights into today’s trending legal topics, 

compendiums of law, as well as annual 

membership and practice group directories. 

To ensure our goals are the same as the 

clients our member firms serve, our 

Client Leadership Council and Practice 

Group Client Advisors are directly involved in 

the development of our programs and services. 

This communication pipeline is vital to 

our success and allows us to better monitor 

and meet client needs and expectations. 

USLAW Abroad. 

Just as legal issues seldom follow state 

borders, they often extend beyond U.S. 

boundaries as well. In 2007, USLAW 

established a relationship with the Trans- 

European Law Firms Alliance (TELFA), a 

network of more than 20 independent law 

firms representing more than 1000 lawyers 

through Europe to further our service and 

reach. 

How USLAW NETWORK Membership 

is Determined. 

Firms are admitted to the NETWORK by 

invitation only and only after they are fully 

vetted through a rigorous review process. 

Many firms have been reviewed over the 

years, but only a small percentage were 

eventually invited to join. The search for 

quality member firms is a continuous and 

ongoing effort. Firms admitted must possess 

broad commercial legal capabilities and 

have substantial litigation and trial experience. 

In addition, USLAW NETWORK 

members must subscribe to a high level of 

service standards and are continuously 

evaluated to ensure these standards of 

quality and expertise are met. 

USLAW in Review. 

• All vetted firms with demonstrated, 

robust practices and specialties 

• Efficient use of legal budgets, providing 

maximum return on legal services 

investments 

• Seamless, cross-jurisdictional service 

• Responsive and flexible 

• Multitude of educational opportunities 

and online resources 

• Team approach to legal services 

The USLAW Success Story. 

The reality of our success is simple: we 

succeed because our member firms' clients 

succeed. Our member firms provide highquality 

legal results through the efficient use 

of legal budgets. We provide cross-jurisdictional 

services eliminating the time and 

expense of securing adequate representation 

in different regions. We provide trusted and 

experienced specialists quickly. 

When a difficult legal matter emerges – 

whether it’s in a single jurisdiction, nationwide 

or internationally – USLAW is there. 

Success. 

For more information, please contact Roger 

M. Yaffe, USLAW CEO, at (800) 231-9110 or 

roger@uslaw.org 

®


USLAW NETWORK: YOUR HOMEFIELD ADVANTAGE 

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Indicates 

Member 

Primary Office 

Location 

Indicates 

Member 

Satellite Office 

Location


2018 MEMBERSHIP ROSTER 

ALABAMA | BIRMINGHAM 

Carr Allison 

Charles F. Carr .......................................(251) 626-9340 

ccarr@carrallison.com 

ALASKA | ANCHORAGE 

Richmond & Quinn 

Robert L. Richmond..............................(907) 276-5727 

brichmond@richmondquinn.com 

ARIZONA | PHOENIX 

Jones, Skelton & Hochuli, P.L.C. 

Phillip H. Stanfield................................(602) 263-1745 

pstanfield@jshfirm.com 

ARKANSAS | LITTLE ROCK 

Quattlebaum, Grooms & Tull PLLC 

John E. Tull, III .......................................(501) 379-1705 

jtull@qgtlaw.com 

CALIFORNIA | LOS ANGELES 

Murchison & Cumming LLP 

Dan L. Longo.........................................(714) 953-2244 

dlongo@murchisonlaw.com 

CALIFORNIA | SAN DIEGO 

Klinedinst PC 

John D. Klinedinst.................................(619) 239-8131 

jklinedinst@klinedinstlaw.com 

CALIFORNIA | SAN FRANCISCO 


Mert A. Howard....................................(415) 995-5033 

mhoward@hansonbridgett.com 

CALIFORNIA | SANTA BARBARA 


Barry Clifford Snyder ............................(805) 683-7750 

bsnyder@snyderlaw.com 

COLORADO | DENVER 

Lewis Roca Rothgerber Christie LLP 

Michael D. Plachy..................................(303) 628-9532 

MPlachy@lrrc.com 

CONNECTICUT | HARTFORD 

Hinckley, Allen & Snyder LLP 

Noble F. Allen........................................(860) 725-6237 

nallen@hinckleyallen.com 

DELAWARE | WILMINGTON 

Cooch and Taylor P.A. 

James W. Semple ..................................(302) 984-3842 

jsemple@coochtaylor.com 

FLORIDA | MIAMI 

Wicker Smith O’Hara McCoy & Ford P.A. 

Nicholas E. Christin ...............................(305) 448-3939 

nchristin@wickersmith.com 

FLORIDA | TALLAHASSEE 

Carr Allison 

Christopher Barkas ...............................(850) 222-2107 

cbarkas@carrallison.com 

GEORGIA | ATLANTA 

Hall Booth Smith, P.C. 

John E. Hall, Jr.......................................(404) 954-5000 

jeh@hallboothsmith.com 

HAWAII | HONOLULU 

Goodsill Anderson Quinn & Stifel LLP 

Edmund K. Saffery................................(808) 547-5736 

esaffery@goodsill.com 

IDAHO | BOISE 

Duke Scanlan & Hall, PLLC 

Richard E. Hall.......................................(208) 342-3310 

reh@dukescanlan.com 

ILLINOIS | CHICAGO 

SmithAmundsen LLC 

Lew R.C. Bricker ....................................(312) 894-3224 

lbricker@salawus.com 

INDIANA | INDIANAPOLIS 


James M. Hinshaw ................................(317) 968-5385 

jhinshaw@bgdlegal.com 

IOWA | CEDAR RAPIDS 

Simmons Perrine Moyer Bergman PLC 

Kevin J. Visser........................................(319) 366-7641 

kvisser@spmblaw.com 

KANSAS/WESTERN MISSOURI | 

KANSAS CITY 

Dysart Taylor Cotter McMonigle & Montemore, PC 

Patrick K. McMonigle .............................816-714-3039 

pmcmonigle@dysarttaylor.com 

KENTUCKY | LOUISVILLE 


Mark S. Riddle.......................................(502) 587-3623 

mriddle@bgdlegal.com 

LOUISIANA | NEW ORLEANS 

McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch LLC 

Michael R. Sistrunk ...............................(504) 846-8338 

msistrunk@mcsalaw.com 

MAINE | PORTLAND 

Richardson, Whitman, Large & Badger 

Elizabeth G. Stouder.............................(207) 774-7474 

estouder@rwlb.com 

MARYLAND | BALTIMORE 

Franklin & Prokopik, PC 

Albert B. Randall, Jr. .............................(410) 230-3622 

arandall@fandpnet.com 

MASSACHUSETTS | BOSTON 

Hinckley, Allen & Snyder LLP 

Kevin J. O'Connor.................................(617) 378-4394 

koconnor@hinckleyallen.com 

MASSACHUSETTS | BOSTON 

LeClairRyan 

Kevin G. Kenneally ...............................(617) 502-8220 

kevin.kenneally@leclairryan.com 

MICHIGAN | GRAND RAPIDS 

Warner Norcross & Judd LLP 

Kevin G. Dougherty..............................(616) 752-2175 

kdougherty@wnj.com 

MINNESOTA | ST. PAUL 

Larson • King, LLP 

Mark A. Solheim ...................................(651) 312-6503 

msolheim@larsonking.com 

MISSISSIPPI | GULFPORT 

Carr Allison 

Douglas Bagwell...................................(228) 864-1060 

dbagwell@carrallison.com 

MISSISSIPPI | RIDGELAND 

Copeland, Cook, Taylor & Bush, P.A. 

James R. Moore, Jr. ...............................(601) 427-1301 

jmoore@cctb.com 

MISSOURI | ST. LOUIS 

Lashly & Baer, P.C. 

Stephen L. Beimdiek.............................(314) 436-8303 

sbeim@lashlybaer.com 

MONTANA | GREAT FALLS 

Davis, Hatley, Haffeman & Tighe, P.C. 

Maxon R. Davis .....................................(406) 761-5243 

max.davis@dhhtlaw.com 

NEBRASKA | OMAHA 

Baird Holm LLP 

Jill Robb Ackerman...............................(402) 636-8263 

jrackerman@bairdholm.com 

NEVADA | LAS VEGAS 

Thorndal Armstrong Delk Balkenbush & Eisinger 

Brian K. Terry ........................................(702) 366-0622 

bkt@thorndal.com 

NEW JERSEY | ROSELAND 

Connell Foley LLP 

Kevin R. Gardner ..................................(973) 840-2415 

kgardner@connellfoley.com 

NEW MEXICO | ALBUQUERQUE 

Modrall Sperling 

Jennifer G. Anderson............................(505) 848-1809 

Jennifer.Anderson@modrall.com 

NEW YORK | HAWTHORNE 

Traub Lieberman Straus & Shrewsberry LLP 

Stephen D. Straus ...................................(914) 586-7005 

sstraus@tlsslaw.com 

NEW YORK | UNIONDALE 

Rivkin Radler LLP 

Evan H. Krinick......................................(516) 357-3483 

evan.krinick@rivkin.com 

NORTH CAROLINA | RALEIGH 

Poyner Spruill LLP 

Deborah E. Sperati ...............................(252) 972-7095 

dsperati@poynerspruill.com 

NORTH DAKOTA | DICKINSON 

Ebeltoft . Sickler . Lawyers PLLC 

Randall N. Sickler..................................(701) 225-5297 

rsickler@ndlaw.com 

OHIO | CLEVELAND 

Roetzel & Andress 

Bradley A. Wright.................................(330) 849-6629 

bwright@ralaw.com 

OKLAHOMA | OKLAHOMA CITY 

Pierce Couch Hendrickson Baysinger & Green, L.L.P. 

Gerald P. Green .....................................(405) 552-5271 

jgreen@piercecouch.com 

OREGON | PORTLAND 

Williams Kastner Greene & Markley 

Thomas A. Ped ......................................(503) 944-6988 

tped@williamskastner.com 

PENNSYLVANIA | PHILADELPHIA 

Sweeney & Sheehan, P.C. 

J. Michael Kunsch .................................(215) 963-2481 

michael.kunsch@sweeneyfirm.com 

PENNSYLVANIA | PITTSBURGH 

Houston Harbaugh, P.C. 

Henry M. Sneath...................................(412) 288-4013 

sneathhm@hh-law.com 

PENNSYLVANIA | PITTSBURGH 

Pion, Nerone, Girman, Winslow & Smith, P.C. 

John T. Pion...........................................(412) 281-2288 

jpion@pionlaw.com 

RHODE ISLAND | PROVIDENCE 

Adler Pollock & Sheehan P.C. 

Richard R. Beretta, Jr. ...........................(401) 427-6228 

rberetta@apslaw.com 

SOUTH CAROLINA | COLUMBIA 

Sweeny, Wingate & Barrow, P.A. 

Mark S. Barrow .....................................(803) 256-2233 

msb@swblaw.com 

SOUTH DAKOTA | PIERRE 

Riter, Rogers, Wattier & Northrup, LLP 

Robert C. Riter ......................................(605) 224-5825 

r.riter@riterlaw.com 

TENNESSEE | MEMPHIS 

Martin, Tate, Morrow & Marston, P.C. 

Lee L. Piovarcy ......................................(901) 522-9000 

lpiovarcy@martintate.com 

TEXAS | DALLAS 

Fee, Smith, Sharp & Vitullo, L.L.P. 

Michael P. Sharp....................................(972) 980-3255 

msharp@feesmith.com 

UTAH | SALT LAKE CITY 

Strong & Hanni, PC 

Stephen J. Trayner ................................(801) 323-2011 

strayner@strongandhanni.com 

VIRGINIA | RICHMOND 

LeClairRyan 

C. Erik Gustafson ..................................(703) 647-5902 

egustafson@leclairryan.com 

WASHINGTON | SEATTLE 

Williams Kastner 

Sheryl J. Willert.....................................(206) 628-2408 

swillert@williamskastner.com 

WEST VIRGINIA | CHARLESTON 

Flaherty Sensabaugh Bonasso PLLC 

Andrew B. Cooke..................................(304) 347-4274 

acooke@flahertylegal.com 

WYOMING | CASPER 

Williams, Porter, Day and Neville PC 

Scott E. Ortiz .........................................(307) 265-0700 

sortiz@wpdn.net 

USLAW INTERNATIONAL 

ARGENTINA | BUENOS AIRES 

Rattagan Macchiavello Arocena 

Juan M. Arocena..............................(54-11) 4010-5007 

JMA@RMLex.com 

BRAZIL | SÃO PAULO 

Mundie e Advogados 

Rodolpho Protasio...........................(55 11) 3040-2923 

rofp@mundie.com 

CANADA | ALBERTA | CALGARY & EDMONTON 

Parlee McLaws LLP 

Connor Glynn........................................(780) 423-8639 

cglynn@parlee.com 

CANADA | ONTARIO | OTTAWA 

Kelly Santini 

Lisa Langevin ...........................(613) 238-6321 ext 276 

llangevin@kellysantini.com 

CANADA | QUEBEC | BROSSARD 

Therrien Couture L.L.P. 

Douglas W. Clarke ................................(450) 462-8555 

douglas.clarke@therriencouture.com 

CHINA | SHANGHAI 

Duan&Duan 

George Wang ......................................8621 6219 1103 

george@duanduan.com 

MEXICO | MEXICO CITY 

EC Legal Rubio Villegas 

René Mauricio Alva..........................+52 55 5251 5023 

ralva@ecrubio.com

® 

® 


EDUCATION 

WED • SEP 5, 2018 

USLAW NETWORK/TELFA 

CROSS-BORDER BUSINESS AND 

TRANSACTIONS EXCHANGE 

c l i e n t 

SOURCEBOOK 

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event. We are very proud of the industryleading 

educational sessions at our semiannual 

client conferences, seminars, and 

client exchanges. Reaching from national 

to more localized offerings, USLAW 

member attorneys and the clients they 

serve meet throughout the year not only 

at USLAW-hosted events but also at 

many legal industry conferences. CLE 

accreditation is provided for most 

USLAW educational offerings. 

FALL 2018 USLAW NETWORK CLIENT CONFERENCE 

SEPT 6-8, 2018 • FAIRMONT THE QUEEN ELIZABETH • MONTREAL, QC 

SPRING 2018 

USLAW NETWORK 

CLIENT CONFERENCE 

montreal 

fall 2018 

USLAW NETWORK offers legal decision 

makers a variety of complimentary 

products and services to assist them 

with their day-to-day operation and 

management of legal issues. The USLAW 

SourceBook provides information 

regarding each resource that is available. 

We encourage you to review these and 

take advantage of those that could 

benefit you and your company. For 

additinal information, simply contact 

desert color 

roger@uslaw.org or (800) 231-9110, ext. 1. 

Roger M. Yaffe, USLAW CEO, at 

APRIL 5-7, 2018 • FAIRMONT SCOTTSDALE PRINCESS • SCOTTSDALE, AZ 

USLAW is continually seeking to ensure 

A TEAM 

OF EXPERTS 

that your legal outcomes are successful 

and seamless. We hope that these resources 

can assist you. Please don't 

hesitate to send us input on your 

USLAW NETWORK undoubtedly has some of the most knowledgeable attorneys in 

the world, but did you know that we also have the most valuable corporate partners in 

the legal profession? Don’t miss out on an opportunity to better your legal game plan 

by taking advantage of our corporate partners’ expertise. Areas of expertise include 

forensic engineering, court reporting, jury consultation, forensic accounting, 

structured settlements, discovery, cyber security and data forensics, investigation and 

legal animation services. 

experience with any of the products or 

services listed in the SourceBook as well 

as ideas for the future that would benefit 

you and your fellow colleagues.


USLAW ON CALL 

What is the value in having individual access to 4-8 highly experienced 

USLAW member attorneys from around the country and around the world 

(if necessary) roundtable specific issues you may be facing including 

actual cases or hypotheticals? USLAW is pleased to provide this free 

consultation which will give you a sense of comfort that you are managing 

a specific issue/case in an appropriate manner and make you aware of 

unforeseen roadblocks and variables that may pop up. It never hurts to 

phone a friend! 

LAWMOBILE 

COMPENDIUMS 

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We are pleased to offer a completely customizable one-stop educational 

program that will deliver information on today’s trending 

topics that are applicable and focused solely on your 

business. In order to accommodate the needs of multiple staff, we 

go one step further and provide LawMobile right in your office or 

a pre-selected local venue of your choice. We focus on specific 

markets where you do business and utilize a team of attorneys to 

share relevant jurisdictional knowledge important to your business’ 

success. Whether it is a one-hour lunch and learn, half-day 

intensive program or simply an informal meeting discussing a 

specific legal matter, USLAW will structure the opportunity to 

your requirements – all at no cost to your company. 

SUBROGATION RIGHTS 

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Compendiumof Law 

USLAW regularly produces new and updates existing 

Compendiums providing a multi-state resource that permits 

users to easily access state common and statutory law. 

Compendiums are easily sourced on a state-by-state basis and 

are developed by the member firms of USLAW. Some of the 

current compendiums include: Retail, Spoliation of Evidence, 

Transportation, Construction Law, Workers’ Compensation, 

Surveillance, Offer of Judgment, Employee Rights on Initial 

Medical Treatment, and a National Compendium addressing 

issues that arise prior to the commencement of litigation 

through trial and on to appeal. Visit the Client Resource section 

of uslaw.org for the complete USLAW compendium library.


STATE JUDICIAL 

PROFILES BY COUNTY 


PROFILES 

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2018 


DIGIKNOW 

USLAW DigiKnow is USLAW’s bi-weekly digital e-newsletter 

featuring insights and perspectives on today's trending legal 

issues. Articles and posts and are written by USLAW member 

attorneys who are subject matter leaders from our our nearly 

20 substantive USLAW Practice Areas and the USLAW 

membership in general. Through USLAW DigiKnow, we 

share legal, legislative and jurisdictional news as well as promote 

upcoming USLAW events and webinars that might be 

of interest to you and your colleagues. It is an excellent 

resource to keep abreast of new case law, important verdicts 

and other pending legislation. 

PREPARED BY THE MEMBER FIRMS OF 

® 

Jurisdictional awareness of the court and juries on a county-bycounty 

basis is a key ingredient to successfully navigating legal 

challenges throughout the United States. Knowing the local 

rules, the judge, and the local business and legal environment 

provides a unique competitive advantage. In order to best serve 

clients, USLAW NETWORK offers a judicial profile that 

identifies counties as Conservative, Moderate or Liberal and 

thus provides you an important Home Field Advantage. 


USLAW MOBILE APPS 

We pack light. Take USLAW with you wherever you go with two important USLAW 

mobile applications. Get USLAW information fast by downloading USLAW 24/7. As 

well, USLAW Events is our Client Conference mobile app that archives all of the 

presentation materials, among several other items, from past USLAW Conferences. 

USLAW apps are available on iPhone/iPad, Android (by typing in keyword USLAW) 

and most Blackberry devices.

® 

® 


USLAW CONNECTIVITY 

In today’s digital world there are many ways to connect, share, communicate, engage, interact and collaborate. Through any one of our 

various communication channels, sign on, ask a question, offer insight, share comments, seek advice and collaborate with others connected 

to USLAW. Please check out USLAW on Twitter @uslawnetwork and our LinkedIn group page. 

USLAW MAGAZINE 

11:33 AM Page A 

SPRING | SUMMER | 2018 

USLAW Magazine is an in-depth publication produced twice annually and designed to address 

legal and business issues facing commercial and corporate clients. Released in Spring 

and Fall, recent topics have covered cyber security & data privacy, medical marijuana & 

employer drug policies,management liability issues in the face of a cyberattack, defending 

motor carriers performing oversized load & heavy haul operations, employee wellness 

programs, social media & the law, effects of electronic healthcare records, patent troll taxes, 

allocating risk by contract and much more. 

THE 

FUTURE 

IS HERE 

The Internet of Things 

and the Law 

What your Company needs 

to know about TCPA 

A CLEAR 

AND 

PRESENT 

DANGER 

CONSUMERS, 

CALLING, 

AND CLASS 

ACTIONS 

“AM I LIABLE BECAUSE 

YOU DID NOT 

FOLLOW MY TRAVEL 

DIRECTIONS?” 

THE POSSIBLE CREATION 

OF A DUTY OF CARE BY 

PROVIDING DIRECTIONS OR 

A ROUTE OF TRAVEL 

pg 22 

Insurance Companies and 

Online Threats with Cybersecurity 

THE GOOD, 

BAD AND UGLY 

Mobile Phone Data...Strategies to 

Avert Risk in the Connectivity Age 

USLAW EDUNET 

The Class Action Attack upon the 

Motor Carrier Industry: 

Defending against Independent Contractor 

Classification Claims, and Wage and Hour Cases 

A wealth of knowledge offered on demand, USLAW EduNet is a regular series of 

interactive webinars produced by USLAW practice groups. The one-hour programs 

are available live on your desktop and are also archived at USLAW.org for viewing 

at a later date. Topics range from Medicare to Employment & Labor Law to Product 

Liability Law and beyond. 

USLAW MEMBER AND PRACTICE 

GROUP ATTORNEY DIRECTORIES 

Several USLAW NETWORK practice groups have compiled detailed directories of the active 

attorneys within their group. These directories showcase the attorneys’ specific areas of 

experience, education, industry memberships, published articles, and in some cases 

representative clients. These directories are available as downloadable PDFs. 

DIRECTORY OF 

ATTORNEYS 

2018 

5905 NW 54TH CIRCLE • CORAL SPRINGS, FL 33067 

PHONE/FAX (800) 231-9110 

www.uslaw.org


RAPID 

RESPONSE 

CLIENT LEADERSHIP 

COUNCIL AND PRACTICE 

GROUP CLIENT 

ADVISORS 

Take advantage of the knowledge of your peers. USLAW 

NETWORK’s Client Leadership Council and Practice Group Client 

Advisors are a hand-selected, diverse group of prestigious USLAW 

firm clients who provide expertise and advice to ensure the 

organization and its law firms meet the expectations of the client 

community. In addition to the valuable insights they provide, CLC 

members and Practice Group Client Advisors also serve as USLAW 

ambassadors, utilizing their stature within their various 

industries to promote the many benefits of USLAW NETWORK. 

The USLAW NETWORK Rapid Response App locates USLAW 

attorneys quickly when timeliness is critical for you and your 

company. Offered for Transportation, Construction Law and 

Product Liability, this resource provides clients with attorneys' 

cell and home telephone numbers along with assurance that 

USLAW will be available 24/7 with the right person and the right 

experience. Available at uslaw.org and the USLAW 24/7 App. 

PRACTICE 

GROUPS 

USLAW prides itself on variety. Its 6,000+ attorneys excel in all areas of legal 

practice and participate in USLAW’s nearly 20 substantive active practice 

groups and communities including Banking & Financial Services, 

Commercial Law, Complex Tort and Product Liability, Construction Law, 

Data Privacy & Security, E-Discovery, Employment & Labor Law, 

Energy/Environmental, Healthcare Law, Insurance and Risk Management 

Services, International Business & Trade, IP and Technology, Professional 

Liability, Retail and Hospitality Law, Transportation and Logistics, White 

Collar Defense, Women’s Connection, and Workers’ Compensation. Don’t 

see a specific practice area listed? No worries as USLAW firms cover 

the gamut of the legal profession and we are sure to find a firm that 

has significant experience in the area of need.


2018 USLAW Corporate Partners 

THANK YOU PARTNERS 

S-E-A 

OFFICIAL TECHNICAL FORENSIC 

ENGINEERING AND LEGAL 

VISUALIZATION SERVICES PARTNER 

OF USLAW NETWORK 

www.SEAlimited.com 

7001 Buffalo Parkway 

Columbus, OH 43229 

Phone:(800) 782-6851 

Fax: (614) 885-8014 

J. Kenneth Corwin 

National Account Executive 



Phone:(800) 782-6851 

Email: jcorwin@www.SEAlimited.com 

Chris Torrens 

Vice President 

795 Cromwell Park Drive, Suite N 

Glen Burnie, MD 21061 

Phone:(800) 635-9507 

Email: ctorrens@SEAlimited.com 

Ami Dwyer, Esq. 

Chief Counsel 

795 Cromwell Park Drive, Suite N 

Glen Burnie, MD 12061 

Phone:(800) 635-9507 

Email: adwyer@SEAlimited.com 

Jared Henthorn 




Phone:(800) 782-6851 

Email: jhenthorn@SEAlimited.com 

★★★★★ 


PREMIER 

PA RT N E R 

S-E-A is proud to be the exclusive sponsor of technical 

forensic engineering and legal visualization services for 

USLAW NETWORK. 

A powerful resource in litigation for nearly 50 years, S- 

E-A is a multi-disciplined forensic engineering, fire investigation, 

and visualization services company 

specializing in failure analysis. S-E-A’s full-time staff 

consists of licensed/registered professionals who are 

experts in their respective field. S-E-A offers a complete 

investigative service including: mechanical, biomechanical, 

electrical, civil, and materials engineering, 

as well as fire investigation, industrial hygiene services, 

visualization services, and a fully equipped chemical 

laboratory. These disciplines interact to provide thorough 

and independent analysis that will support any 

subsequent litigation. 

Should animations, graphics, or medical illustrations 

be needed, S-E-A’s Imaging Sciences Group can 

prepare accurate and court-qualified demonstrative 

pieces for litigation support. The company’s on-staff 

engineers and graphics professionals coordinate their 

expertise to prepare exhibits that will assist a judge, 

mediator, or juror in understanding complex principles 

and nuances of your case. S-E-A can provide technical 

drawings, camera-matching technology, motion 

capture for biomechanical analysis and accident simulation, 

3D laser scanning and fly-through technology 

for scene documentation, presentation, and computer 

simulations. In addition, S-E-A can prepare scale models 

of products, buildings or scenes made by professional 

model builders or using 3D printing technology, 

depending on the application. Please visit 

www.SEAlimited.com for examples of these capabilities. 

U.S. Legal Support, Inc 

OFFICIAL COURT REPORTING 

PARTNER OF USLAW NETWORK 

www.uslegalsupport.com 

★★★★★ 


PREMIER 

PA RT N E R 

363 N. Sam Houston Pkwy. E., Suite 1200 

Houston, TX 77060 

Phone:(800) 567-8757 

Fax: (713) 653-7172 

Charles F. Schugart 

President & CEO 



Phone:(832) 201-3834 

Email: cfschugart@uslegalsupport.com 

Pete Giammanco 

Executive VP & COO 

15250 Ventura Boulevard, Suite 410 

Sherman Oaks, CA 91403 

Phone:(818) 995-0600 

Email: pgiammanco@uslegalsupport.com 

Lee Ann Watson 

Executive VP, Sales & Marketing 



Phone:(832) 201-3872 

Email: lwatson@uslegalsupport.com 

Jim Cunningham 

Director of Record Retrieval 

Division President, Midwest Region 

200 West Jackson Boulevard, Suite 600 

Chicago, IL 60606 

Phone:(312) 236-8352 

Email: jcunningham@uslegalsupport.com 

U.S. Legal Support, Inc. founded in 1996 is a privately 

held company with over 85 offices located 

across the United States. As one of the leading 

providers of litigation services, they provide court 

reporting, record retrieval and trial services to 

major corporations and law firms nationwide. 

Their management team is truly unique with division 

presidents who are experts in the litigation services 

industry. All are involved in the day-to-day processes 

and have the autonomy to make immediate decisions 

regarding client questions and concerns. This, 

along with their proven ability to organize resources, 

results in long-term client relationships. 

U.S. Legal Support is the proud official Court 

Reporter Partner of USLAW NETWORK, providing 

access to over 3,500 superior court reporters 

equipped with state-of-the-art technology. Client 

services include a complete online office with 24/7 

access, offering the ability to easily schedule or 

reschedule court reporting jobs online, view and 

download transcripts and exhibits and review invoices. 

With their specialists and offices positioned across 

the country, U.S. Legal Support has the ability to 

provide you with national resources and local expertise. 

They look forward to showing you their 

Power of Commitment.



Consilio 

OFFICIAL E-DISCOVERY, CYBERSECURITY AND 

DATA FORENSICS PARTNER OF USLAW NETWORK 

www.consilio.com 

1828 L Street, NW 

Suite 1070 

Washington, DC 20036 

Phone: (202) 822-6222 

Jeff Cole 

Managing Director 

Email: jeff.cole@consilio.com 

Greg Lutz 


Email: glutz@consilio.com 

Roger Miller 


Email: roger.miller@consilio.com 

Michael Pontrelli 


Email: mpontrelli@consilio.com 

Consilio is proud to be the official eDiscovery, cybersecurity 

and data forensics partner of USLAW 

NETWORK. 

Consilio is a global leader in eDiscovery, document 

review, risk management, and legal consulting services. 

The company supports multinational law 

firms and corporations using innovative software, 

cost-effective managed services and deep legal and 

regulatory industry expertise. Consilio has extensive 

experience in litigation, HSR second requests, 

internal and regulatory investigations, eDiscovery, 

document review, information governance, compliance 

risk assessments, cybersecurity, law department 

management, contracts management, legal 

analytics, paper discovery and digital printing, as 

well as legal recruiting and placement. Consilio 

and its global family of companies, Advanced 

Discovery, Altep, Millnet Document Services and 

Legal Placements Inc., employ leading professionals 

in the industry, applying defensible workflows 

with patented and industry-proven technology 

across all phases of the eDiscovery and risk management 

lifecycle. ISO 27001:2013 certified, the 

company operates offices, document review and 

data centers across Europe, Asia, and North 

America. To learn more, visit our website www.consilio.com, 

or connect with us on LinkedIn 

www.linkedin.com/company/consilio-llc/ or 

Twitter www.twitter.com/ConsilioGlobal. 

Litigation Insights 

OFFICIAL JURY CONSULTANT PARTNER 


www.litigationinsights.com 

9393 W. 110th Street, Suite #400 

Overland Park, KS 66210 

Phone:(913) 339-9885 

Twitter:@LI_Insights 

Merrie Jo Pitera, Ph.D. 

Chief Executive Officer 

Phone:(913) 486-4159 

Email: mjpitera@litigationinsights.com 

Twitter:@MerrieJoPitera 

Adam Bloomberg 

Vice President – Managing Director of Visual 

Communications 

Phone:(214) 658-9845 

Email: abloomberg@litigationinsights.com 

Twitter:@adambloomberg 

Jill Leibold, Ph.D. 

Director of Jury Research 

Phone:(310) 809-8651 

Email: jleibold@litigationinsights.com 

Twitter:@DrJillLeibold 

Christina Marinakis, J.D., Psy.D. 

Director – Jury Research 

Phone:(443) 742-6130 

Email: cmarinakis@litigationinsights.com 

Since 1994 Litigation Insights has been a nationally 

recognized leader in the trial consulting field. 

Litigation Insights is proud to be in our fourth year 

as sponsor of jury research services for USLAW 

NETWORK. We have worked with several member 

law firms over the years and are excited about the 

opportunity of working with more of the USLAW 

membership. In a business often characterized by 

transitory relationships, we have made it a point to 

build long-lasting partnerships both with clients 

and our own team members. 

Our clients hire us when their cases are complex, 

difficult and unclear. They bring us in when issues 

are volatile, emotions are high and millions of dollars 

are at risk. We’re asked to consult on tough litigation 

because we’ve seen so many tough cases and, 

more importantly, we’ve provided valuable insights. 

At Litigation Insights, we have the experience to 

help you quickly interpret your case details. We ask 

the right questions, listen to the answers and help 

you develop compelling stories and visuals that 

speak genuinely to your audience. Whether you’re 

working toward an expedient settlement, or battling 

through weeks in the courtroom, we help you 

determine the most convincing details of your case 

so you can incorporate them and tell your story 

more effectively. 

Litigation Insights has been certified as a Women’s 

Business Enterprise by the Women’s Business 

Enterprise National Council (WBENC). 

For more information on how can help with jury 

research, trial graphics or trial presentation, please 

contact any of our executive staff above. 

Marshall Investigative Group 

OFFICIAL INVESTIGATIVE PARTNER 


www.mi-pi.com 

416 W Talcott Road 

Park Ridge, IL 60068 

Phone:(855) 350-6474 (MIPI) 

Fax: (847) 993-2039 

Doug Marshall 

President 

Email: dmarshall@mi-pi.com 

Adam M. Kabarec 


Email: akabarec@mi-pi.com 

Matt Mills 

Vice President of Business Development 

Email: mmills@mi-pi.com 

Thom Kramer 

Director of Internet Investigations 

Email: tkramer@mi-pi.com 

Marshall Investigative Group is a national investigative 

firm providing an array of services that help 

our clients mediate the validity of questionable 

cargo, disability, liability and workers’ compensation 

claims. 

Our specialists in investigations and surveillance 

have a variety of backgrounds in law enforcement, 

criminal justice, military, business and the insurance 

industry. Our investigators are committed to 

innovative thinking, formative solutions and detailed 

diligence. 

One of our recent achievements is leading the industry 

in Internet Presence Investigations. With the 

increasing popularity of communicating and publishing 

personal information on the internet, internet 

presence evidence opens doors in determining 

the merit of a claim. Without approved methods 

for collection and authentication this information 

may be inadmissible and useless as evidence. Our 

team can preserve conversations, photographs, 

video recordings, and blogs that include authenticating 

metadata, and MD5 hash values. Our goal is 

to exceed your expectations by providing prompt, 

thorough and accurate information. At Marshall 

Investigative Group, we value each and every customer 

and are confident that our extraordinary 

work, will make a difference in your bottom line. 

Services include: 

• Activity/Background 

Checks 

• AOE / COE 

• Asset Checks 

• Bankruptcies 

• Contestable Death 

• Criminal & Civil 

Records 

• Decedent Check 

• Health History 

• Intellectual Property 

Investigations 

• Internet Presence 

Investigations 

• Pre-Employment 

• Recorded 

Statements 

• Skip Trace 

• Surveillance



MDD Forensic Accountants 

OFFICIAL FORENSIC ACCOUNTANT 

PARTNER OF USLAW NETWORK 

www.mdd.com 

11600 Sunrise Valley Drive, Suite 450 

Reston, VA 20191 

Phone:(703) 796-2200 

Fax: (703) 796-0729 

David Elmore 

11600 Sunrise Valley Drive, Suite 450 

Reston, VA 20191 

Phone:(703) 796-2200 

Fax: (703) 796-0729 

Email: delmore@mdd.com 

Kevin Flaherty, CPA, CVA 

10 High Street, Suite 1000 

Boston, MA 02110 

Phone:(617) 426-1551 

Fax: (617) 426-6023 

Email: kflaherty@mdd.com 

Matson, Driscoll & Damico is a leading forensic accounting 

firm that specializes in providing economic 

damage quantification assessments for our 

clients. Our professionals regularly deliver expert, 

consulting and fact witness testimony in courts, arbitrations 

and mediations around the world. 

We have been honored to provide our expertise on 

cases of every size and scope, and we would be 

pleased to discuss our involvement on these files 

while still maintaining our commitment to client 

confidentiality. Briefly, some of these engagements 

have involved: lost profit calculations; business disputes 

or valuations; commercial lending; fraud; 

product liability and construction damages. 

However, we have also worked across many other 

practice areas and, as a result, in virtually every industry. 

Founded in Chicago in 1933, MDD is now a global 

entity with over 40 offices worldwide. 

In the United States, MDD’s partners and senior 

staff are Certified Public Accountants; many are 

also Certified Valuation Analysts and Certified 

Fraud Examiners. Our international partners and 

professionals possess the appropriate designations 

and are similarly qualified for their respective countries. 

In addition to these designations, our forensic 

accountants speak more than 30 languages. 

Regardless of where our work may take us around 

the world, our exceptional dedication, singularly 

qualified experts and demonstrated results will always 

be the hallmark of our firm. To learn more 

about MDD and the services we provide, we invite 

you to visit us at www.mdd.com. 

Structured Financial Associates, Inc 

OFFICIAL STRUCTURED SETTLEMENT PARTNER 


www.sfainc.com 

3060 Peachtree Road, NW 

Suite 1150 

Atlanta, GA 30305 

Phone:(770) 393-1028 

Fax: (770) 393-4432 

(800) 638-5890 

Richard Regna, CSSC 

President 

3060 Peachtree Road, NW, Suite 1150 

Atlanta, GA 30305 

Phone:(800) 638-5890 

Email: rregna@sfainc.com 

John Machir 

Chief Marketing Officer 

7255 E. Griswold Road 

Scottsdale, AZ 85258 

Phone:(800) 638-5890 

Email: jmachir@sfainc.com 

Structured Financial Associates, Inc. is honored to 

be USLAW’s exclusive partner for structured settlement 

services. 

Structured Financial Associates, Inc. (“SFA”), a 

founding leader in the structured settlement business, 

takes a multifaceted approach to claim resolution. 

The use of structured settlement annuities to 

provide consistent income to injured parties while 

honoring the business practices of our client partners 

is the core of our business model. SFA consultants 

assist in the establishment and funding of other 

settlement tools, including Special Needs Trusts and 

Medicare Set-Aside Trusts, and SFA is strategically 

partnered with Structures, Inc. to provide innovative 

market-based, tax efficient income solutions for injured 

plaintiffs and their legal counsel. 

Structured Financial Associates, Inc. was founded 

in 1985 and is one of the largest structured settlement 

companies in the industry. SFA is a member 

of Integrated Financial Settlements (IFS) and has 

more than 60 structured settlement consultants 

with offices in every major metropolitan area of the 

country. SFA’s full-service operations and support 

teams is comprised of veterans of the settlement industry 

dedicated to providing superior service to its 

customers throughout the United States. Our 

knowledge and ability to create comprehensive and 

tailor-made solutions makes SFA invaluable to defense 

clients, injured plaintiffs and their attorneys. 

THANK YOU PARTNERS

® 

® 

The Internet of Things 

and the Law 

What your Company needs 

to know about TCPA 

Insurance Companies and 

Online Threats with Cybersecurity 

M 

3/9/18 11:33 AM Page A 

www.uslaw.org 

3111 N. University Drive, Suite 400 

Coral Springs, FL 33065 

SO MUCH MORE THAN 

JUST A NETWORK OF OVER 

6000 ATTORNEYS 

USLAW MEMBER CLIENTS RECEIVE THESE COMPLIMENTARY SERVICES: 

montreal 

fall 2018 

EDUCATION A TEAM OF EXPERTS USLAW ON CALL LAWMOBILE COMPENDIUMS OF LAW 


PROFILES 

BY COUNTY 

2018 


THE 

FUTURE 

IS HERE 

A CLEAR 

AND 

PRESENT 

DANGER 

CONSUMERS, 

CALLING, 

AND CLASS 

ACTIONS 

“AM I LIABLE BECAUSE 

YOU DID NOT 

FOLLOW MY TRAVEL 

DIRECTIONS?” 

THE POSSIBLE CREATION 

OF A DUTY OF CARE BY 

PROVIDING DIRECTIONS OR 

A ROUTE OF TRAVEL 

pg 22 

THE GOOD, 

BAD AND UGLY 

STATE JUDICIAL PROFILES 

BY COUNTY 

USLAW DIGIKNOW USLAW MOBILE APPS USLAW CONNECTIVITY USLAW MAGAZINE 

DIRECTORY OF 

ATTORNEYS 

2018 

5905 NW 54TH CIRCLE • CORAL SPRINGS, FL 33067 

USLAW EDUNET 

USLAW MEMBER AND PRACTICE 

GROUP ATTORNEY DIRECTORIES 

RAPID RESPONSE 

CLIENT LEADERSHIP COUNCIL 

AND PRACTICE GROUP CLIENT 

ADVISORS 

PRACTICE GROUPS 

For more information about these complimentary services, visit uslaw.org today! 

®

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