The National Labor Relations Board threw out its most important ruling of 2017 — a 3-2 victory for major U.S. corporations — following an internal agency report that found that a potential conflict-of-interest had tainted the vote, reports Bloomberg, via the Chicago Tribune.

Bloomberg reporter explains that the discarded ruling, called Hy-Brand, had reversed a controversial Obama-era “joint employer” decision empowering workers to pursue claims against, or seek collective bargaining with, major corporations that don’t sign their paychecks, such as franchisors or clients of contractors.

“The vote overturning that 2015 case included support from Trump-appointed William Emanuel, whose former law firm had represented one of the companies in the original case, Browning-Ferris,” Eidelson reports.

Read the Tribune article.

Reuters reports that Supreme Court justices on Tuesday wrestled with Microsoft Corp’s dispute with the U.S. Justice Department over whether prosecutors can force technology companies to hand over data stored overseas, with some signaling support for the government and others urging Congress to pass a law to resolve the issue.

“The case began when Microsoft balked at handing over a criminal suspect’s emails stored in Microsoft computer servers in Dublin in a drug trafficking case. Microsoft challenged whether a domestic warrant covered data stored abroad” according to reporters Lawrence Hurley and Dustin Volz.

Two of the justices, Ruth Bader Ginsburg and Sonia Sotomayor, questioned whether the court needed to act now,  considering the fact that Congress is considering bipartisan legislation that would resolve the legal issue.

Read the Reuters article.

General Electric has announced a shakeup that’s unusual in corporate America, disclosing an overhaul to its board that included the departure of eight directors, the nomination of three new members and an eventual change next year in its independent lead director, The Washington Post reports.

“The announcement, which follows a precipitous fall in its share price in recent months and weeks of troubling headlines for investors, was first discussed by new CEO John Flannery in November and had been expected,” writes reporter Jena McGregor. “If shareholders approve the nominees, the industrial giant will have just 12 directors — far closer to the average size board and 33 percent smaller than the 18-member board it had a year ago.”

She adds that the revamp is an example of the kind “of overhaul advisers on governance and board recruitment say is extremely rare, if well overdue at the embattled company.”

Read the Post article.

Roetzel & Andress LPA announced that E. Mark Young has joined the firm’s Cleveland office and Business & Commercial Litigation practice as a partner. Young has experience working with local legal community and civic organizations.

The firm said Young focuses his practice on complex civil litigation matters in federal and state courts. He represents companies ranging from small, local businesses to international companies and financial institutions, serving as “first chair” in multiple matters before the courts. He has also represented clients in bankruptcy cases and in administrative proceedings before a number of government agencies.

Young returns to Roetzel after having worked as an associate at the firm from February 2005 through July 2008.

“We are thrilled to welcome Mark to Roetzel and we look forward to his contributions and added leadership among our firm’s highly respected group of business litigators and corporate lawyers,” Roetzel Chairman Robert E. Blackham said. “Mark’s deep experience in a wide range of industries and matters will be a great asset to our team.”

Douglas E. Spiker, partner-in-charge of Roetzel’s Cleveland office, said, “Mark has been a well-respected litigator and civic-minded counselor in the Cleveland business community for many years. His skills and business acumen enhance the breadth and depth of our services to our corporate and financial clients.”

Young said, “I am excited to rejoin my colleagues at Roetzel, which is well-known in Cleveland and nationally for its experienced litigation team and successes in handling high-profile cases across the full spectrum of industries. I also look forward to continuing my focus on community work that allows me to bring my business and legal knowledge to bear on behalf of important civic efforts.”

Most recently, Young was a partner with Meyers, Roman, Friedberg & Lewis in Cleveland. Previously, he also was a partner at Benesch Friedlander Coplan & Aronoff, also in Cleveland. In addition, Young has served as outside general counsel to multiple companies in diverse industries, including mobile technology, construction supply manufacturing, low- and moderate-income residential housing development, alcohol manufacturing and distribution, medical billing and home health care, as well as for religious institutions and a number of minority- and female-owned businesses.

Young also is an adjunct professor at The Cleveland Marshall College of Law and a former trustee of the Cleveland Metropolitan Bar Foundation.

Outside his law practice, Young has been engaged in local civic and community initiatives, the firm said. He currently serves on the executive committee as the Parliamentarian and on the board for the Consortium of African American Organizations and is a member of the Executive Committee and the board for Gilmour Academy High School in Gates Mills, Ohio. In addition, he has served in various board or leadership roles with the Cleveland Academy of Scholarship Technology and Leadership Enterprise, the Wake Forest University Alumni Association and Local Alumni Chapter, and the Gilmour Academy High School Alumni Association.

Young received his J.D. from the University of Toledo College of Law. He also holds a Master of Arts from Maxine Goodman Levin College of Urban Affairs at Cleveland State University and a Bachelor of Arts from Wake Forest University.

Dykema announced that Adam Fishkind, a member of the firm’s Real Estate Practice Group, has been appointed as Managing Member of the firm’s Bloomfield Hills office.

In a release, the firm said Fishkind represents in real estate based transactions, including investors, lenders, developers, owners, and operators. He advises clients in commercial real estate transactions, including the acquisition, disposition, development, leasing, management, financing, and syndication of a wide variety of real estate projects such as office buildings, industrial properties, telecommunications facilities, single family and multi-family communities, regional shopping malls, strip shopping centers, parking facilities, hotels, golf courses, and planned developments. He also advises real estate-based business entities with respect to formation and operation, including structure of organization, acquisitions, mergers, reorganizations, dispositions, debt and equity financing, and real estate workouts.

Fishkind is also a member of Dykema’s Financial Institutions Team and has experience representing national lending institutions and borrowers in the negotiation, structuring documentation and enforcement of commercial real estate acquisition loans, construction and land development loans and various other commercial lending transactions.

Fishkind earned a J.D., from DePaul University and a B.A., with honors, from Michigan State University.

Two attorneys with experience helping biotech and other companies finance their operations and a patent litigator with a focus on Asian businesses have joined Barnes & Thornburg LLP in its Chicago office. Bruce Zivian and Dennis Peterson have joined as partners in the Corporate Department, and Joseph Paquin is a new partner in the Intellectual Property Department.

The firm said Zivian and Peterson have more than 30 years of combined experience of working with venture capital funds and syndicates, private equity sponsors, corporate strategic investors and entrepreneurs, principally engaged in the life sciences, information technology, autonomous vehicles and other tech-focused industries. They join from Perkins Coie LLP.

“Growing our corporate practice is a strategic priority for us in 2018 and we are thrilled to kick off the year by adding to our team,” said David Gotlieb, chair of Barnes & Thornburg’s Corporate Department. “Bruce and Dennis are two dynamic attorneys who can advise on the domestic and international investment activities of key players in the venture capital and private equity space. They will be tremendous resources for high-tech companies looking to grow and scale, as well as the investors involved throughout their life cycles.”
Paquin focuses his practice on patent litigation, counseling and protection, with an emphasis on representing Asian companies. He also represents clients in post-patent grant proceedings, including inter partes reviews and patent reexamination.

In a release, the firm said:

Mark Rust, managing partner of Barnes & Thornburg’s Chicago office, said: “In the past year, we’ve seen a record infusion of capital flowing into emerging growth companies based in Chicago, and Bruce and Dennis will be instrumental in driving continued deal activity in 2018 and beyond.”

“Joe is a highly regarded patent litigator and veteran IP counselor,” said Rust. “His vast experience advising manufacturing and technology companies around the world will nicely complement our national IP practice, not to mention our fast-growing office in Chicago.”

About the Attorneys

Bruce Zivian represents clients involved in venture capital, private equity and debt financing transactions; M&A; board and corporate governance matters; commercialization activities, including research, development, license, reseller and distribution transactions; joint ventures; and employment and benefits issues, among other matters.
Zivian earned his J.D. from the University of Michigan Law School and his A.B., with honors and distinction, from Stanford University.
Dennis Peterson provides guidance to private equity, venture capital and corporate strategic investors in their investments and acquisitions. He also represents early and growth companies in general corporate and commercial matters, including mergers, acquisitions, divestitures and financing transactions.

Peterson earned his J.D., magna cum laude, from the University of Minnesota Law School and his B.A. and B.S., with honors, from the University of Minnesota.

Joseph Paquin, in addition to his litigation and post-grant work, advises clients on their patent portfolios, patent licensing, and comprehensive corporate IP programs. His industry experience covers a wide spectrum of technologies and consumer goods, including electronics, telecommunication systems, semiconductors, computer displays and hardware, food products, dental products, injection-molding equipment, magnetic resonance imaging scanners, and lithium ion batteries, among others.

Paquin earned his J.D. from Georgetown University Law Center and his B.S. from The Ohio State University.

Littler has added Bradley E. Schwan as a shareholder in the Los Angeles and Orange County offices. He was previously an attorney in Morgan, Lewis & Bockius LLP’s labor and employment practice.

“Littler’s presence in Southern California continues to grow and we are excited to add Brad to our robust California team,” said Shannon Boyce, office managing shareholder of Littler’s Los Angeles offices. “Brad’s background, particularly his experience representing clients in class action litigation matters, will be valuable as we continue to help our clients navigate a rapidly evolving regulatory landscape.”

In a release, the firm said Schwan defends employers in wage and hour class action litigation, and against claims of wrongful termination, discrimination, harassment and individual wage and hour violations in litigation and in front of administrative agencies. He also advises on matters involving breach of contract, noncompetition and non-solicitation, and claims of employee poaching. Schwan’s practice also includes helping employers design and implement workplace policies that comply with labor and employment laws in California and nationwide.

“I have worked side by side with Littler attorneys in the past and have always been impressed with their depth of knowledge on labor and employment matters,” Schwan said. “It’s exciting to join a firm that has a deep understanding of the wide-ranging issues facing employers and a commitment to developing new and innovative tools to better serve clients.”

Schwan received his J.D. from the University of California, Los Angeles, School of Law and his B.S. in Systems Engineering from the U.S. Military Academy at West Point. Before starting his legal career, he served on active duty in the United States Army as a field artillery officer and military intelligence officer for six years.

Foley & Lardner LLP announced that Eric Cheung has joined the firm’s Health Care practice as of counsel in the Los Angeles office.

The firm said Cheung is a health care transactional and litigation lawyer whose practice focuses on regulatory compliance, hospital operations, mergers and acquisitions and restructuring. He handles matters involving physician alignment models, medical staff and licensure issues, health plans, accountable care organizations and labor issues, including physician recruiting and hiring. Cheung represents clients across the health care industry, including hospitals, medical groups, physicians, diagnostic imaging centers and dialysis centers, the firm said.

“We’re eager for Eric to join us,” said Larry Vernaglia, chair of Foley’s Health Care practice. “His vast litigation and transactional experience is a valuable asset to our growing practice. We welcome his perspective as we continue to navigate the health care industry’s complex legal landscape on behalf of our clients.”

The firm said Cheung is familiar with federal and state regulatory compliance issues concerning anti-kickback, self-referral and HIPAA laws, as well as risk management and litigation avoidance. He also has a background in biology which allows him to maintain an interest in the biotechnology issues that can potentially alter and transform health care and delivery and payment systems.

“Eric’s unique insight on an array of health care issues and his involvement with the California health care industry will be incredibly helpful to our clients in Los Angeles, across California and nationally,” said Jeff Atkin, managing partner of Foley’s Los Angeles office. “We’re happy to bring him on board.”

Cheung is a member of the California Society for Healthcare Attorneys, the Los Angeles Bar Association and the American Bar Association.

Prior to joining Foley, Cheung was a partner at Ervin Cohen & Jessup LLP.

FisherBroyles, LLP announced that Matthew S. Parrish has joined the firm’s Cincinnati office as a partner.

“With Matt’s arrival, we are continuing to build a strong national corporate and commercial transactions practice with strength in mergers and acquisitions and capital market transactions,” said Edmund F. Brown, managing partner of the FisherBroyles Ohio offices in Cincinnati, Columbus and Cleveland. “We are excited to have Matt join the firm and expand the Cincinnati office. Matt is a highly experienced business lawyer whose practice has tremendous synergies with our strategic growth priorities.”

In a release, the firm said Parrish advises clients in the consumer products, advanced manufacturing, and technology industries, among others, on merger and acquisition, debt and equity financing, and a broader range of corporate issues. In addition, Parrish has experience advising clients in the sports and entertainment industry on issues relating to the monetization and exploitation of their brands and other intellectual property assets.

Before joining FisherBroyles,Parrish was a partner in the Cincinnati office of Calfee, Halter & Griswold. He also is a past in-house counsel with Kao USA, Inc., a global premium beauty care products company.

Parrish is admitted to practice law in Ohio; Kentucky; Washington, D.C.; and the U.S. District Court for the Southern District of Ohio. He has been named a leading lawyer by Cincy Magazine each year since 2013, and in 2012 was recognized by Newsweek magazine as a leading entertainment lawyer.

Employers are finding that generic harassment policies with one-size-fits-all instructional videos are not addressing key issues, says Audrey Mross, employment partner at Munck Wilson Mandala.

She and her firm offer a training session for managers and supervisors as well as an employee version of the training.

“Using actual examples helps attendees begin to understand where the line is between acceptable and unacceptable behavior,” she says. “I’ve found that this is what triggers an ‘aha’ moment for many, and often individuals will speak up and share their own experiences with their peers in the training session.”

Read the article.

The National Association of Corporate Directors has published its 2018 Governance Outlook and made it available for downloading at no charge.

The report provides perspective on the trends, issues, and risks that will command the board’s attention this year.

“Perhaps the biggest challenge for directors right now is deciding where to focus their attention,” the NACD says on its website. “Both risks and opportunities are proliferating at a bewildering pace. How can boards and directors make the most of their limited time?”

The report includes:

• a summary of directors’ priorities from the 2017–2018 NACD Public Company Governance Survey;
• an assessment of the future of risk management from Grant Thornton LLP;
• a look at the forces driving change in board composition and succession;
• an alert to an often-overlooked liability risk: failing to reveal pertinent information;
• new trends in D&O exposures; and
• insight into workforce disruption, cyber-risk reduction, and other risks.

Download the report.

Law firms may not be the safe repository of client confidences—such as trade secrets and merger plans—that they once were, as hackers recognize firms as prized vaults of proprietary corporate data, warns Bloomberg Law. And clients are starting to view law firm data breaches as serious business considerations.

Daniel R. Stoller talked with Christopher Dore, privacy partner at plaintiff-side firm Edelson PC in Chicago, who told him that “if hackers want to get data from Alphabet Inc.’s Google, the best path may be through a law firm rather than directly from the company, because the law practice likely has an almost ‘unlimited variety of data.'”

And Lucian T. Pera, legal ethics partner at Adam and Reese LLP in Memphis, Tenn. and former treasurer of the American Bar Association, told Stoller: “Cybersecurity protections are becoming a serious factor in client decision-making,” at law firms, and large firms stand to lose business if they don’t take care of cybersecurity.

Read the Bloomberg article.

Charles Sartain and Chance Decker, writing in Gray Reed & McGraw’s Energy & the Law blog, describe a contract case in which an oil and gas landman found out that the contract he signed with a purported agent for a client was unenforceable.

The independent landman signed a contract with the purported agent of the plaintiffs, in which the producers were to pay Moore “$600 per mineral acre for for leases signed. The plaintiff said he helped secure numerous leases, but defendants refused to pay.

The authors explain that the court found that the contract didn’t specify the properties it applied to, this violating the Statute of Frauds. Sartain and Decker then offer some ways the contract could have been written so it would have been enforceable.

Read the article.

A decade-long construction defect battle involving a South Padre Island, Texas, luxury condominium complex damaged during Hurricane Dolly has been resolved in a take-nothing defense win secured by attorneys of the West Mermis law firm for the general contractor, G.T. Leach Builders.

The condominium developer, Sapphire, initially sued its insurance brokers for negligence for allowing the builder’s risk insurance policy to expire, leading to claims for extensive damage to the Sapphire condominium project from the 2008 storm. Nearly three years later, G.T. Leach and several of its subcontractors were added to the $30 million lawsuit.

The trial team, led by Lawrence J. West, presented evidence proving that the developer’s allegations of multiple breach of contract claims were unsupported, according to the firm. They demonstrated that the contract contained express provisions that prevented the Developer from recovering the $30 million it was demanding.

Read details of the case.

Earlier this month, tax attorneys Steven Toscher and Michel R. Stein, principals at Hochman Salkin Rettig Toscher & Perez P.C., delivered a presentation titled “New IRS Scrutiny on Cryptocurrency Reporting: Filing Requirements and Exchange Treatment.”

Toscher and Stein’s presentation explains, “Cryptocurrency is drawing increased attention from government regulators.” They note that in November 2017, Coinbase was ordered to release information on approximately 14,000 customers.

They also discuss the means of obtaining virtual currency, problems posed by “fair market value,” and issues that are unresolved.

Read the article.

Individuals who are hoping for a preemptive pardon from President Trump for any role they may have had in criminal activity should be aware that they run a significant risk that acceptance of a pardon would be used by state prosecutors as an admission of guilt.

Writing for Slate.com, New York University School of Law professor Ryan Goodman explains that a president’s pardon power applies only to federal crimes, leaving that individual liable for state crimes that cover the same underlying conduct.

“Officials like New York’s [Attorney General Eric] Schneiderman may feel they have an ace in hand if they can walk into a state courthouse with a defendant’s admission of guilt implied by having accepted a presidential pardon,” writes Goodman. “This get-out-of-federal-jail card comes at a price.”

He cites a 1915 U.S. Supreme Court ruling that acceptance of a pardon carries with it a “confession of guilt.”

Read the Slate.com article.

The Associated Press is reporting that Japanese air bag maker Takata Corp. has reached a $650 million deal to settle consumer protection claims from 44 states and Washington, D.C., but only a fraction of the money will be paid due to Takata’s financial problems and bankruptcy.

Plaintiff states agreed not collect the settlement so that victims of Takata’s faulty air bag inflators can get a bigger piece of the company’s remaining money. But South Carolina, which led the states, will get more than $139,000 to cover costs of the investigation.

Reporter Tom Krisher explains that Takata air bag inflators can explode with too much force and spew shrapnel into drivers and passengers. At least 22 people have died worldwide and more than 180 have been hurt.

Read the AP article.

A Texas jury found State Senator Carlos Uresti guilty on 11 felony charges — including fraud and money laundering — for his role as general counsel for a now-bankrupt oilfield services company that perpetrated a Ponzi scheme against its investors.

The Texas Tribune reports that Uresti could face a long prison sentence and fines amounting to millions of dollars.

“Uresti was charged last year in connection with FourWinds Logistics, a now-bankrupt oilfield services company that perpetrated a Ponzi scheme against its investors,” reports Emma Platoff. “Uresti served as general counsel for FourWinds and owned 1 percent of the company. He also earned commission for recruiting investors, according to court documents.”

Read the Tribune article.

Exterro Inc., a provider of e-discovery and legal software, has released the 4th Annual Federal Judges Survey, produced in partnership with BDO Consulting and EDRM at Duke Law.

The survey report can be downloaded from Exterro’s website at no charge.

The report is a compilation and analysis of the responses of 30 judges to questions about attorney and judicial e-discovery proficiency, recommendations for improvements, and their thoughts on how legal teams are using new e-discovery rules.

It includes:

• 33-pages of quantitative data analysis on where attorneys need to improve their e-discovery skills — and how to do so
• Op-ed commentary from judges on the practical implications of the survey results
• Access to the raw data, showcasing how the judges responded to  each of the 27 questions we asked them

Download the survey report.

A recent unpublished Michigan Court of Appeals opinion provides some guidance with respect to the architect’s and engineer’s common law duty when processing pay applications, according to a post on the website of Clark Hill.

Jeffrey M. Gallant and Scott D. Garbo explain that the court held that the owner of a construction project could not maintain a professional negligence claim against the architect for failing to adequately review payment applications.

“While you may only have a contract with one of many project participants, Michigan courts continue to elaborate on the potential obligations owed to all other participants, including architects, engineers, contractors, subcontractors, owners, and lenders,” they write.

Read the article.