Nov. 8 Live Event: General Counsel and Experts Share New Drivers of Diversity

Bloomberg Law’s 4th annual Talent and Diversity Forum brings together industry leaders to share insights on what can actually increase diversity in the legal industry.

The event will be November 8, 2018, 8 a.m. to noon, in the offices of Bloomberg Government, 1101 K Street, NW, Washington, DC 2005.

With the emergence of new technologies and increased data analysis, the industry has seen significant shifts in recruiting and retention strategies and the emergence of an operations and value-driven business model, Bloomberg says on its website.

The half-day program will bring together corporate diversity champions, general counsel, and industry experts to offer up the newest ideas for bridging the ongoing diversity gap, from using technology to analyze data on prospective attorneys to ways to adapt an organization’s overall diversity initiatives to best suit an in-house legal team.

Key topics will include:

  • Harnessing diversity in the changing business of law
  • Using data and technology to increase diversity
  • Workshopping scenarios to tackle diversity issues

Request an invitation.




Biglaw Firm Admits It Botched Handling of Sexual Assault Allegation Against a Partner

Above the Law reports that Baker McKenzie released a joint report last week that admits the way the firm handled the alleged sexual assault by a partner at the firm involved “a number of shortcomings … which we very much regret.”

A partner in the firm’s London office was accused of assaulting an associate after a firm event six years ago, recalls Above the Law editor Kathryn Rubino. “The associate reported it to the firm, and they investigated. But instead of getting rid of the offending partner, the firm just sanctioned him and reached a settlement with the associate who was victimized. It was only after the story became public that the firm bowed to pressure and the accused partner left the firm.”

Read the Above the Law article.



Florida Supreme Court Foils Governor’s Plan to Pick New Justices

The Associated Press reports that Florida’s next governor and not incumbent Gov. Rick Scott will get to pick three new justices to the state Supreme Court, the court ruled in a decision with major implications in this year’s gubernatorial campaign.

“In a major rebuke to Scott, the Supreme Court concluded that the Republican governor exceeded his authority when he started the process to find replacements for the three justices,” the AP reports.

Because of age limits of 70, three justices must retire at midnight Jan. 8, the same day Scott is scheduled to leave the governor’s office. Scott, claiming he had authority to name the replacements, last month asked a nominating commission to start accepting applications with a Nov. 10 deadline.

Read the AP article.



Firms Cite 1851 Law in Fatal Missouri Duck Boat Accident, Seek Mediation

Two companies facing multiple lawsuits over a summer tourist boat accident in Missouri that killed 17 people have invoked an 1851 law that allows vessel owners to try to avoid or limit legal damages as they also seek settlement negotiations with victims’ family members, reports the Chicago Tribune.

“If a judge concluded that the federal law cited by Ripley [Entertainment Inc.] and Branson Duck Vehicles applies, claims for damages over the July 19 accident on Table Rock Lake near Branson, Missouri, could be consolidated into a single federal court case,” explains the article, from the Associated Press. “The companies’ petition states that under the federal law, they would not owe any damages because the boat carried no freight and was a total loss.”

Read the Chicago Tribune article.



Dallas Firm Named Tops in U.S. Law for Business Disputes

Loewinsohn Flegle Deary SimonDallas business trial law firm Loewinsohn Flegle Deary Simon won the No. 1 spot for the Elite Trial Lawyers award, based on research by VerdictSearch, The National Law Journal and

Three of the firm’s co-founders, Alan Loewinsohn, Craig Simon, and Matt Ray, accepted the award during a reception at the Las Vegas Bellagio Hotel on October 5.

The firm’s recent litigation includes a trial victory that resulted in a $6 billion verdict – the largest verdict of 2017 and one of the Top 10 verdicts in U.S. history.

Read details about the honor.



Backdating—When is it Appropriate?

Backdating legal documents is frequently permissible. However, under other circumstances, it can be fraudulent or illegal, warns Elizabeth A. Whitman in a post on the website of Whitman Legal Solutions LLC.

Her article discusses when legal documents might be backdated and how legally to do so when it is appropriate.

She explains that sometimes a document must be backdated to make it accurate, how backdating is accomplished, when it is illegal to backdate a document, and how to assure the use of backdating is legal.

Read the article.



3 Key Takeaways: How Blockchain Technology will Reshape Legal Contracting

A recent presentation at the ACC Colorado Fall Frenzy in Denver addressed how blockchain platforms are reshaping contracting, particularly how blockchain can be used to protect the security and integrity of contracts and automatically execute based on external conditions.

A post on the website of Kilpatrick Townsend expands on the three takeaways: Blockchains have important uses besides cryptocurrencies; smart contracts are already in use by companies; and the technology is in its infancy and several pitfalls exist.

Read the article.




Champagne Remark May Cost Lawyer $289 Million Bayer Award

The lawyer most responsible for winning a $289 million verdict against Bayer AG may end up wiping it out, according to a Bloomberg Law report.

Brent Wisner, the lead trial attorney who in August convinced a jury that Monsanto Co.’s Roundup weed killer caused his client’s cancer, irked the judge handling the case so profoundly that she’s considering tossing the verdict and ordering a new trial.

From the Bloomberg report: “The lawyer told jurors that Monsanto executives in a company board room were ‘waiting for the phone to ring’ and that ‘behind them is a bunch of champagne on ice,’ according to a court filing. He said that ‘if the damages number isn’t significant enough, champagne corks will pop.’”

Read the Bloomberg Law article.



Legal Fight Erupts Over Lawyer’s Advertising Slogan

The ABA Journal reports that a Florida attorney is suing San Antonio lawyer Heather Clement Tessmer for using “Ever Argue With A Woman?” on billboards, the internet and business cards to pitch her legal services.

Florida lawyer Melissa Wilson claims in a federal lawsuit that Tessmer and her Tessmer Law Firm are infringing her trademark by using a confusingly similar slogan.

Journal reporter Debra Cassens Weiss explains: “Wilson says she has been using the slogan since at least September 2007, and she sent an email telling Tessmer to stop after she learned of the infringement from confused consumers around April 2014. Her lawyers also tried to contact Tessmer, but Tessmer never responded, the suit says.”

Read the ABA Journal article.





Recent Oil and Gas Verdict Highlights Importance of FLSA Compliance

A recent case from the United States District Court for the Western District of Pennsylvania highlights how expensive a Fair Labor Standards Act case can be when an employee prevails for unpaid overtime compensation, writes Jay Carr in Vorys, Sater, Seymour and Pease’s Energy & Environmental Law Blog.

The article describes Sammy Mozingo v. Oil States Energy Services L.L.C., in which oil field workers in Texas filed a class action alleging that their employer Oil States had misclassified them as exempt from overtime laws. Most of the employees settled, but eight went to trial, resulting in Oil States paying damages, fees, and costs totaling $3,385,884 for just these eight employees.

Read the article.




New Decision Highlights (Again) the Importance of Defining ‘Commercially Reasonable Efforts’

If your client is going to contractually commit to using commercially rea­son­able ef­forts to do something — and if your client expects that obligation to require some­thing less than “all reasonable efforts” — then you’ll want to make that expectation clear in the contract itself, advises D.C. Toedt III in the On Contracts Blog.

He discusses a case in which the influential Dela­ware chancery court noted the chasm be­tween the meaning of that term to transactional lawyers versus to courts.

“Seemingly disregarding practitioners’ views, the chancery court continued the Delaware trend —which that court itself started — of treating com­mer­­ci­al­ly rea­sonable efforts as requiring the obligated party to take ‘all rea­son­able steps.’”

Read the article.



Duty of Good Faith, Tortious Interference, and Statutes of Limitation

A new Seventh Circuit Court of Appeals case demonstrates the importance of filing suit in a timely manner in order to retain one’s contractual rights, writes Myanna Dellinger in ContractsProf Blog. It also shows just how nasty contractual parties may act towards each other in violation of the duty of good faith and fair dealing.

The article details the case in which JTE distributed products in Chicago for Bimbo Foods Bakeries Distribution Company for over a decade. The contract had no duration, but stipulated that it could be terminated in cases of non-curable breaches by one of the parties.

Bimbo allegedly did not meet the standard of good faith because, according to JTE, Bimbo “began fabricating curable  breaches.” However, because the four-year statute of limitations had run, JTE could still not have asserted that argument, the court found.

Read the article.



A Basic Compliance Requirement: A Contract Management System

Michael Volkov of Volkov Law group has posted an article that says a contract management system is imperative for businesses.

The article discusses the four important purposes for such a system:

  • To maintain consistency in the formulation and enforcement of contractual relationships;
  • To mitigate business risks between the company and a party (e.g. customer, vendor, supplier);
  • To protect the company’s culture and mitigate compliance risks through imposition of certifications, representations and warranties, and specific compliance obligations;
  • To protect the accuracy of the company’s financial payment and receivables system by verifying the accuracy of payment terms and conditions in accordance with the company’s contractual agreements.

Read the article.



Trump Reportedly Floating 5 Different Names to Replace Attorney General Jeff Sessions

Jeff Sessions

Jeff Sessions

President Donald Trump believes Attorney General Jeff Sessions will likely leave his Cabinet at the end of the year, and so far has five potential replacements in mind who could take his place, reports Business Insider.

“Possible successors include retired federal appeals judge Janice Rogers Brown, transportation department counsel Steven Bradbury, Health and Human Services secretary Alex Azar, deputy Secretary of State John Sullivan, and Bill Barr, who served as attorney general under President George H.W. Bush,” according to the article, based on a Wall Street Journal report.

The Washington Post also reported that President Trump talked recently with Sessions’ own chief of staff, Matthew G. Whitaker,  about replacing Sessions as AG, according to people briefed on the conversation, signaling that the president remains keenly interested in ousting his top law enforcement official.

Read the Business Insider article.




Pac-12 General Counsel Called Officials During Game to Change Call

Pac-12 general counsel Woodie Dixon interfered with an official review of a foul in a game between USC and Washington State, resulting in the NCAA conference deciding to change its policy on non-trained officials weighing in on such reviews.

CBS Sports reports that Pac-12 commissioner Larry Scott addressed the incident in which Dixon interfered with a targeting review during the game in September.

Tom Fornelli writes that reports indicate that Dixon, who is not a formally trained official, called into the Pac-12 replay booth and said he didn’t think a targeting penalty applied to the play. In the official game report, Gary McNanna, who was the replay official in the booth for the game, wrote that “a third party did not agree so the targeting was removed.”

Read the CBS Sports article.





Discrimination Defense Lawyer Confirmed for Trump Civil Rights Post

Bloomberg Law reports that the U.S. Senate has confirmed Eric Dreiband, a Jones Day attorney who defends companies accused of discrimination, to lead the Justice Department office that enforces anti-bias laws and investigates police civil rights cases.

“Dreiband represented the University of North Carolina when it implemented policies under the state’s since-repealed ‘bathroom bill,’ requiring people to use gender-designated restroom facilities based on the biological sex listed on their birth certificates,” writes Bloomberg’s Chris Opfer. “He also won a case for R.J. Reynolds Tobacco that made it harder for workers to sue for age discrimination under federal law.”

Read the Bloomberg Law article.



Interpreting Indemnity Provisions in Construction Contracts

Liability in the construction process is usually determined and allocated by contract, explains a post on the website of Faegre Baker Daniels LLP.

“It is quite common for construction contracts to contain indemnity provisions requiring one party to defend and reimburse the other against various expenses or losses. When contracts include express indemnity provisions, they will likely receive more attention, and be the subject of more negotiations between counsel, than any other provisions. Yet, if pressed to state what it means to ‘indemnify’ or ‘hold harmless,’ many are at a loss,” according to the firm.

The post discusses strict construction, express negligence, and the liberal or fair construction rule.

Read the article.



5 Insurance Tips Before the Storm Hits

When a storm is headed in your direction, it’s critical to prepare for an emergency by making sure you have medical supplies and enough food and water to sustain your family. The aftermath of a storm can be devastating. You should be equally prepared on the insurance front to protect your home and get back on your feet as soon as possible.

Dallas insurance litigator Meloney Perry of Perry Law P.C. offers some storm insurance tips to keep in mind before and after a storm hits.

1. Ensure You Have Adequate Amounts of Insurance and Correct Coverage

Unfortunately, insurance is not a “one size fits all” solution. Simply having insurance coverage sometimes isn’t enough. Educate yourself and understand the adequate types and amounts of insurance that fit your needs.

Extra Credit: Research and compare multiple insurance plans while revisiting your coverage often.

2. Talk with Your Insurance Agent

Do this at least twice a year to revisit coverages—this needs to be done before a storm hits or you may find yourself without coverage you thought you had. Tap into your agent’s knowledge and don’t be shy about asking questions.

Extra Credit: Keep agent information in your telephone and in the cloud for easy access in case of an emergency.

3. Don’t Just Take Out ID Cards, Read Your Insurance Policies

Knowledge is power. If you know what your policy does and doesn’t cover, you’ll be in a better position to work with your insurance carrier. If you don’t understand what is included in our policy, call your agent. (See tip No. 2.)

Extra Credit: Research the Texas Department of Insurance Website for easy Q&A and forms. They’re a great resource.

4. In the Event of Damage or Loss, Take Pictures and Keep All Receipts Handy

Insurance carriers want all the supporting evidence for your claim they can get their hands on. This will allow them to assess the situation and process your claim faster than others.

Extra Credit: Make and keep multiple copies. Upload everything to the cloud for easy access and keep hard copies with a relative or in a fire-proof box.

5. Have A Proof of Loss Form Available for Easy Filing

A proof of loss form will identify the value of the items damaged or lost in the storm. Completing this form quickly and accurately can help with the claims process and avoid possible headaches, such as underpayment, delay or denial of your claim.

Extra Credit: Keep a printout of your insurance policy to determine what to include in the form.



Brett Kutnick Joins Jackson Walker’s Trial & Appellate Litigation Practice in Dallas

Appellate attorney Brett D. Kutnick has joined Jackson Walker as a partner in the Dallas office.

The firm said in a release that Kutnick has more than 20 years of experience as a litigator and the managing partner of an appellate boutique law firm.

“Having Brett join our team is a significant triumph for both the Firm and our clients. He is a premier appellate lawyer with a proven track record,” said W. Ross Forbes Jr., Chair of the Trial & Appellate Litigation practice.

Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization, Kutnick has served as lead appellate attorney in courts throughout the state, including the Texas Supreme Court and the Fifth Circuit Court of Appeals.

The firm said his experience includes commercial cases and business appeals, encompasses oil and gas issues, contract disputes, business torts, professional malpractice, breach of fiduciary duty claims, shareholder oppression, and intellectual property rights.

“Moving to Jackson Walker was a natural choice for both me and my clients. At Jackson Walker, I’ll be able to expand my practice while focusing on the cases I enjoy,” Kutnick said.

While working toward his J.D. at the University of Texas School of Law, Kutnick was a member of the Texas Law Review, Chancellors, Order of the Coif, and the Legal Research Board.



Download: 2018 Corporate Ediscovery Benchmarking Report

Zapproved recently partnered with Corporate Ediscovery to commission an in-depth survey of corporate ediscovery professionals. The resulting benchmark report uncovers key insights about the ediscovery community, including common challenges, aspirations, and approaches to managing each stage of the EDRM.

The 2018 Corporate Ediscovery Benchmarking Report can be download from Zapproved’s website at no charge.

The results and detailed benchmarks include:

  • The volume and types of matters that require ediscovery support
  • How corporate teams are managing each stage of the EDRM – from data preservation through document review
  • Common challenges and goals for 2019 and beyond
  • Best practice adoption rates and barriers

Download the report.