The Alabama Bar Association has approved the Privacy Law Specialty authorized by the American Bar Association (ABA) and certified by the International Association of Privacy Professionals (IAPP). This is the ninth specialty designation in the state, the IAPP said in a release.

The Privacy Law Specialist (PLS) certification is administered by the IAPP and accredited by the ABA, marking the fifteenth legal specialty accredited by the ABA. The credential is available to attorneys admitted to a U.S. state bar who pass the CIPP/US exam, as well as either the CIPM or the CIPT programs. Qualifying attorneys must also pass the PLS ethics exam administered by the IAPP or submit a recent MPRE score of 80+, provide proof of “ongoing and substantial” involvement practicing privacy law, supply evidence of at least 36 hours of continuing education in privacy law for the preceding three years, and provide at least five peer references from attorneys, clients or judges attesting to the attorney’s privacy law qualifications.

“There is an increasing importance for legal teams to be well-versed on the rapidly evolving area of privacy law,” said J. Trevor Hughes, IAPP president and CEO. “With this designation, each lawyer demonstrates his or her qualifications to remain at the forefront of this legal field and join other leaders in a key intersection of policy, law and technology.”

To date, only 40 attorneys have achieved the PLS nationwide including three practicing in Birmingham:

Paige Boshell
Managing Member, Privacy Counsel LLC
privacycounselllc.com
Boshell has also been designated a Fellow of Information Privacy and is certified CIPP/US (United States law), CIPP/E (EU law), and CIPM (privacy management).

Elena Lovoy
Of Counsel, McGlinchey Stafford
www.mcglinchey.com
Lovoy has also been certified CIPP/US (United States law), CIPP/E (EU law), CIPP/C (Canadian law), CIPM (privacy management), and CCEP (compliance and ethics professional).

Josh Torres
Corporate Regulatory and Privacy Counsel, iCIMS, Inc.
www.icims.com
Torres has also been designated a Fellow of Information Privacy and is certified CIPP/US (United States law), CIPM (privacy management), and CIPT (privacy technologist).

Interested attorneys may find more information on applying to become a Privacy Law Specialist at https://iapp.org/certify/pls/ or email pls@iapp.org.

In contracts about complicated services, the hardest terms to draft appear in statements of work, according to a post on the website of Tech Contracts Academy.

“SoW’s for large projects demand long lists of duties from the vendor,” explains author David W. Tollen. “And usually they’re interwoven with supporting tasks from the customer, along with countless contingencies, assumptions, and exceptions. Putting all those pieces into an effective contract challenges the best drafters. The result is often hundreds of pages of baffling mess. Yet the path to good drafting is surprisingly simple: write outcome-driven descriptions. In other words, describe the technology the vendor will create or run or both, and then stop typing.”

The most effective statements of work, Tollen writes, will focus on the outcome — on specifications for the technology to be built or run — and minimize restrictions on how.

Read the article.

The standards for determining when a party waives its right to arbitrate through participation in litigation have never been uniform among the circuits or easily applied writes John Lewis in BakerHostetler’s Employment Class Action Blog.

He discusses the recent Fifth Circuit opinion in Forby v. One Technologies, L.P., which illustrates the difficulty of applying the “prejudice” requirement in a consumer fraud and unjust enrichment class action.

In reversing a district court ruling, the appellate court highlighted some analytical problems that apply equally in the employment law context.

Read the article.

CBS News reports that a federal judge nominee who the American Bar Association deemed “not qualified” for the bench has become the first in U.S. history to be confirmed by the Senate with a tie-breaking vote from the vice president.

Vice President Mike Pence cast the deciding vote in favor of Jonathan Kobes after senators split 50-50 on his confirmation to the 8th Circuit Court of Appeals. Kobes is a lawyer from Sioux Falls, South Dakota.

The American Bar Association gave Kobes a “not qualified” rating, saying he had shown “neither the requisite experience nor evidence of his ability to fulfill the scholarly writing required of a United States Circuit Court Judge.”

Read the CBS News article.

Bloomberg Law reports that a New York lawyer had his license suspended for one year for trying to bully a judge who held his clients in contempt, and accusing another judge of “egregious” behavior for sanctioning him for filing a frivolous lawsuit.

A trial judge ordered Jonathan Steinberg to pay $28,600 in attorneys’ fees and $5,000 to the Lawyers’ Fund for Client Protection for filing a meritless suit on behalf of himself, but he didn’t pay either fine, according to Bloomberg’s Bernie Pazanowski.

When a judge in another case testified at Steinberg’s sanction hearing, rather than apologizing, Steinberg yelled at him and tried to intimidate him, Pazanowski writes.

Read the Bloomberg Law article.

Thousands of people are demanding the resignation of a Texas state district judge in Waco who accepted a plea deal for an accused rapist that sentenced the student to probation rather than prison, reports The Dallas Morning News.

Reporter Sarah Sarder explains:

“Judge Ralph Strother of the 19th District Court of Texas approved the plea deal for Jacob Walter Anderson. The plea deal includes three years of probation, a $400 fine and an order to seek unspecified counseling. Former Baylor fraternity president Jacob Walter Anderson, 23, of Garland was allowed to plead no contest Monday to a charge of unlawful restraint. Anderson will not be required to register as a sex offender.”

As of Friday morning, the online petition calling for Strother to be removed from office had more than 30,000 signatures.

Read the Morning News article.

Promoting a legal case requires a different set of skills and tactics compared to defending a client in the court of public opinion, writes Bruce Vincent of Muse Communications. His blog post focuses on cases that lawyers and their clients want reported, rather than those that should remain below the media’s radar.

First, he advises, ask: “Is my case media-friendly?”

“Being honest with yourself and your client on the front end is crucial. No one wants to waste time or money promoting a story that honestly has little chance of generating positive coverage,” Vincent explains.

He also gives advice on thinking like a reporter and acting like a news producer.

Read the article.

By Robert Miller, CPA, CFE
Samet & Company, PC

With the effective date for the new revenue standard fast approaching, many private companies have still not taken important steps towards implementation. Time is running out as the private company implementation date draws closer and some entities may be surprised to learn that the effort to implement the new model is more involved than they might have imagined.

In May 2014 the Financial Accounting Standards Board (FASB) issued Accounting Standards Update (ASU) 2014-09, Revenue from Contracts with Customers, codified as Accounting Standards Codification (ASC) 606. This sweeping new revenue standard changes the entire model for recognizing revenues from arrangements with customers, introducing a new five-step model. The effective date for non-public entities is any fiscal year beginning after December 15, 2018.

Companies must consider and resolve important questions: What systems are in place to capture the new accounting, reporting and disclosure requirements? Are there customer arrangements that have a variable consideration component? Which of the two acceptable methods for calculating transaction price will be most appropriate? How will assessments be made to determine whether to recognize performance obligations at a point in time versus over time? What adoption method will be most appropriate? These are just some of the questions that must be considered by all entities as they implement the new revenue standard.

Auditors are also paying close attention to the implementation of ASC 606, and will themselves be focused on designing procedures to properly test the elements within the new revenue recognition model, in addition to implementation of the standard by their audit clients.

Companies will find that it is generally beneficial to have a preliminary discussion with their auditor regarding the approach in the first year of implementation and beyond. This will almost certainly eliminate certain potential surprises later on. Items that should be discussed include:

• The approach for documenting implementation of ASC 606, including the new five-step model
• The accuracy of any data used, and the approach for compiling that data to support first year reported amounts and disclosures
• The controls and process for ensuring that revenues are being properly captured and recognized under the new model
• Any assumptions by management and the supporting evidence or reasoning behind those assumptions
• Important management representations that are likely to be required

All entities within the scope of ASC 606 will need to develop a plan for implementation and document how they are applying the new standard, regardless of the level of impact. At a minimum, there are expanded disclosure requirements for all entities. Additionally, many entities that have already adopted ASC 606 found that changes to existing systems were necessary in many cases. An initial assessment of the impact of the new standard is critical to gain an understanding of what might be involved to implement.

So what should private companies who have not yet taken action do? Here are some important steps to follow:
• Designate a Champion – Identify and assign an individual to lead the implementation project
• Develop an Implementation Plan – A solid implementation plan should cover several areas, including technical accounting impact, processes and internal controls, IT and data needs, and training, among other areas
• Document – Document the application of the standard to specific types of customer contracts
• Make Changes to Systems – Implement any necessary system changes to ensure information necessary for proper reporting is captured and tracked
• Capture Information Necessary for Implementation – Complete any analyses and calculations needed to properly support amounts and disclosures on the date of adoption

An important first step is to contact your accounting firm. Your audit partner is often management’s best resource. An initial discussion about how the new ASC 606 model is likely to affect your business can be worth its weight in gold. While the clock continues to tick for many companies that have not yet begun the process of evaluating the impact of ASC 606, there is still time to avoid unwanted surprises. The key is to take that first step and reach out to your accounting firm or other advisor who has a solid understanding of the new standard and start the discussion about implementation.

Robert S. Miller, CPA, CFE, partner, Samet & Company, PC, Robertm@samet-cpa.com, 617-751-5395, www.sametcpa.com

Hanzo, a developer of dynamic web archiving technology for compliance and e-discovery professionals, announced a lineup of industry experts presenting in the webinar “How to Win Using Native Format to Capture Social Media Data,” on Dec. 19, 2018.

The event will include a discussion about the importance of social media to business communications and the ensuing challenges it presents for e-discovery and compliance in the aftermath of the Cambridge Analytica scandal. The webinar also will share strategic insights and best practices for defensible social media collection and real-world stories from the field.

In a release, the company said social media is a valuable way to communicate with customers, but many heavily regulated financial firms shy away from its use, fearing that regulatory compliance will be too difficult. Organizations can also find social media to be critical in e-discovery because it offers a rare window into people’s daily thoughts and activities, even after those people have become embroiled in litigation.

Recent data privacy and security discussions have impacted the use of APIs for social media collections. In this webinar industry experts from legal to corporate will share their experiences with how organizations use and deal with social media in the course of their business. They’ll discuss the risk and challenges surrounding compliance and eDiscovery collections, and explore what is driving organizations toward superior native-format collections.

Speakers will be:

• Mark A. Smolik, General Counsel Chief Compliance Officer, DHL Supply Chain Americas
• Michael Quartararo, Managing Director, eDPM Advisory Services
• Steve Tanner, Social Media & Online Communities Lead, Relativity
• Evan Gumz, Senior Account Executive, EDiscovery, Hanzo

REGISTER
How to Win Using Native Format to Capture Social Media Data
https://www.hanzo.co/native-format-capture-social-media-webinar
Date: Wednesday, December 19, 2018
Time: 1:30 pm ET
Cost: Free

Register for the webinar.

Exterro has published “Top 10 E-Discovery Case Law Rulings of 2018” and made the report available on its website for downloading at no charge.

The white paper provides a quick recap of the most important and influential e-discovery case law rulings from 2018. After analyzing metrics from Exterro’s online case law library, the company compiled the 10 most popular case law rulings from this past year.

The report provides:

• The 10 most popular case law rulings from 2018 in Exterro’s Simplified E-Discovery Case Law Library with overviews, rulings, and key takeaways
• Expert opinions from leading e-discovery attorneys and resources to help prevent e-discovery missteps and sanctions
• Analysis from Hon. Andrew Peck, US Magistrate Judge, S.D.N.Y. (Ret.) and Senior Counsel, DLA Piper

Download the report.

Chrysta Castañeda has been awarded The National Law Journal’s Elite Trial Lawyers Award for 2018.

The Castañeda Firm, based in Dallas, represents litigation clients in the energy industry.

“One of Ms. Castañeda’s most notable recent victories was a $145 million verdict on behalf of T. Boone Pickens and Mesa Petroleum, which was recognized as one of the largest in the nation in 2016 by NLJ and one of the largest in Texas by Texas Lawyer,” the firm said in a release.

Castañeda served as lead trial counsel for Pickens’ company in the long-running dispute, which resulted in a five-week trial in Pecos, Texas.

Read details of the award.

John Koenig has been elected managing partner of Barnes & Thornburg LLP’s Atlanta office, effective Nov. 5, 2018.

Koenig succeeds Stuart Johnson, a veteran corporate and transactional attorney who joined the firm to open the Atlanta office in 2009. Johnson will return to the full-time practice of law, in which he advises middle market clients on general business matters, mergers and acquisitions, joint ventures and corporate financing transactions.

“We appreciate Stuart’s numerous contributions over the years, starting with our first foray into the Southeast and culminating with the full-service office we now have in one of the premier business and transportation hubs in the world,” said Bob Grand, firm managing partner. “With Stuart at the helm, the office has been one of the fastest-growing law firm offices in Atlanta, and we are excited about the continued momentum.”

Koenig, a 16-year veteran of Barnes & Thornburg, is a partner in the firm’s Labor & Employment Department. He is a management-side labor and employment attorney with a national practice, with an emphasis on traditional labor matters such as collective bargaining, labor arbitrations and NLRB cases.

“I am honored by the support of my partners and look forward to building upon the great foundation we have established in our decade here in Atlanta,” said Koenig. “I am excited to continue our progress and stay focused on delivering value and relentless client service, above and beyond what clients expect, which distinguishes us from other firms.”

Natalie Friend Wilson has been promoted to shareholder at Langley & Banack, Inc. and will lead the firm’s cybersecurity practice, as well as continue to practice in bankruptcy and litigation.

The firm said Wilson represents debtors, creditors, and bankruptcy trustees in complex insolvency proceedings, including related litigation and appeals. She also counsels clients on privacy and data protection, data breach response, cybersecurity and general cyber-contracting matters, as head of the Firm’s Cybersecurity, Data Protection and Privacy Practice Group.

Langley & Banack’s Cybersecurity team assists clients with drafting and implementation of cyber-security and general incident response plans and structures, enhanced compliance, and governance policies and protocols, the firm said in a release. They also advise financial institutions and industry clients in the drafting and negotiation of their website development, website hosting, SaaS agreements and other internet and data-based service agreements. As such, the practice group assists organizations to manage rapidly evolving privacy threats and mitigate the potential loss and misuse of information assets.

Wilson is active in the Military Spouse JD Network, a bar association for lawyers married to members of the armed forces. She is active in the local Air Force community and currently Key Spouse Mentor for the 836th Cyberspace Operations Squadron.

Wilson holds a B.A. from St. Mary’s College of Maryland, summa cum laude, and a J.D. from the University of Hawai’i, William S. Richardson School of Law, where she graduated cum laude.

She has been honored as a Professional “On the Rise” by Texas Lawyer Magazine (2018), San Antonio Business Journal’s 40 Under 40 (2016), and the Belva Lockwood Outstanding Young Lawyer by the Bexar County Women’s Bar Foundation (2014).

Arent Fox LLP announced the expansion of its Tax practice in Washington, DC with the addition of partner Jeffrey Tate. Tate’s practice focuses on domestic and international transactional work, and includes counseling on mergers and acquisitions, real estate investments, joint ventures, securitizations, private equity and hedge fund investments and structuring, financial products, pass-through entities, FATCA compliance, and capital markets transactions.

Tate joins Arent Fox from Shearman & Sterling LLP, where he worked with corporate, financial institution, investment fund, and sovereign clients. Tate is fluent in Portuguese and he was principally responsible for overseeing all Latin American capital markets tax matters at his prior firm. He also has experience advising Latin American and other clients on fund formation, mergers and acquisitions and inbound investment matters.

The firm said Tate’s recent work includes advising sovereign wealth funds on U.S. real estate investment and development matters and fund investments; advising a Brazilian digital payments processer on its NYSE-listed initial public offering; and advising various private equity, real estate, hedge, and other investment funds on structuring and tax matters and portfolio acquisitions.

Indictments unsealed Tuesday in New York State Supreme Court described a wide-ranging scheme involving three companies to steal at least $15 million from Bloomberg L.P., the giant financial information and media company, through bribes, kickbacks and bid rigging.

Manhattan district attorney Cyrus R. Vance described it as a “brazen” scheme lasting more than a decade.

The New York Times reports that the district attorney and state police said the case involves possible fraud, theft and bribery charges involving senior New York executives in Bloomberg’s global construction and facilities department.

Times reporter Charles V. Bagli explains how — according to investigators — contractors and executives exchanged texts that used code words to coordinate the scheme:

“Among the conspirators, ‘sandwich’ was code for bribes or kickbacks, prosecutors said. The contractor wanted to know if the executive, Vito Nigro of Turner Construction, was satisfied with the thick envelope stuffed with cash that had been delivered to his office the prior day, according to the indictment.”

Read the NY Times article.

Letitia James
Image by Thomas Good

NBC News is reporting that New York Attorney Gen.-elect plans to launch sweeping investigations into President Donald Trump, his family and “anyone” in his circle who may have violated the law once she settles into her new job next month.

“We will use every area of the law to investigate President Trump and his business transactions and that of his family as well,” James, a Democrat, told NBC News in her first extensive interview since she was elected last month.

NBC reporter writes that James campaigned on passing a bill to change New York’s double jeopardy laws with an eye on possible pardons coming out of the White House. That change would allow her to pursue state charges against anyone the president were to pardon over federal charges or convictions and whose alleged crimes took place in the state.

Read the NBC News article.

A former federal prosecutor has been disbarred for posting anonymous online comments about cases being handled by himself or by his office, according to reports from the ABA Journal and the Legal Profession Blog.

The Louisiana Supreme Court ordered the disbarment of Sal Perricone, finding he had violated ethics rules because his “caustic, extrajudicial comments about pending cases strikes at the heart of the neutral “dispassionate control which is the foundation of our system.”

“Perricone had posted more than 2,600 comments on nola.com, the website of the New Orleans Times-Picayune, between November 2007 and March 2012. Between 100 and 200 comments related to matters being prosecuted by Perricone’s office,” according to Journal reporter Debra Cassens Weiss.

Read the ABA Journal article.

The difference in average compensation for male and female partners at top U.S. law firms amounts to a 53 percent pay gap, according to a Major, Lindsey & Africa survey.

The ABA Journal summarizes the findings:

Average compensation for male partners responding to the survey was $959,000, which is 53 percent more money than the average of $627,000 paid to female partners, according to the partner compensation survey from Major, Lindsey & Africa. Average compensation for all partners was $885,000.

Most male partners don’t perceive a problem with pay differences, according the new survey.

Read the ABA Journal article.

Two law firms known for their class action practices have filed a new lawsuit that blames Pacific Gas and Electric Co. for the November fire that killed at least 88 people in Northern California and destroyed the town of Paradise, reports the ABA Journal.

The Edelson law firm and Lieff Cabraser Heimann & Bernstein filed the suit in state court in San Francisco on behalf of seven named plaintiffs. It is among several suits that accuse PG&E of negligently maintaining its equipment, writes reporter Debra Cassens Weiss.

The suit alleges negligence, inverse condemnation, trespass, private nuisance, premises liability, negligent interference with prospective economic advantage, violations of the California Public Utilities Code, and violations of the California Health & Safety Code, according to the Journal report.

Read the ABA Journal article.

More than 2,000 refinery and chemical workers and their families in Southeast Texas will be awarded another $140 million for asbestos exposure thanks to an arbitration award and settlement of a nearly 30-year-old legal case, according to a release from one of the firms involved, Provost Umphrey, L.L.P.

The award, from a three-judge arbitration panel, comes in addition to a previously agreed-upon $38 million settlement in the case, Cimino v. Raymark Industries, which began in 1990. Altogether, a bankruptcy trust will pay $178 million to resolve the claims of the workers and their families.

The panel’s decision brings an end to one of the longest-running civil litigations in history, according to the release. The 2,288 plaintiffs were originally diagnosed with an asbestos-related disease, including mesothelioma, between 1985 and 1987. When the cases were tried as a class action in 1990, the plaintiffs prevailed and the court entered judgments totaling more than $1.3 billion.

But after 10 years of motions, transfers and appeals, the 5th Circuit Court of Appeals found against the plaintiffs, reversed the judgments and sent the cases back to the trial court. The remaining defendant, Pittsburgh Corning Corporation (PCC), subsequently filed for bankruptcy and the Cimino plaintiffs were forced to wait another 16 years before having the opportunity to file bankruptcy claims and litigate their right to compensation from the PCC Asbestos Trust.

Between 1989-1990, the Cimino litigation involved:

2,354 depositions
1,400 independent medical exams
133 days of trial
271 expert witnesses
292 fact witnesses
6,176 exhibits
373 court orders
58 lawyers

Ultimately, the case produced four published opinions.

“While we are proud of successfully resolving this historic litigation, it is devastating to think that PCC’s unwillingness to treat our clients fairly means less than 3 percent of the original asbestos plaintiffs are alive today to receive this compensation,” said Bryan Blevins of Beaumont-based Provost Umphrey, L.L.P., who represented the firm’s clients in the case. “But what matters is they and their families are going to receive it, finally. That says something about their desire to see that justice was done.”

Representing the plaintiffs with Blevins were Glen Morgan of Reaud, Morgan & Quinn L.L.P. and Joseph Rice of Motley Rice, LLC.

Arguing before the arbitration panel were Blevins, Rice and New York University Law Professor Arthur Miller.