Contracting parties frequently use terms such as “commercially reasonable efforts,” “reasonable efforts,” “best efforts” or similar standards when describing their expectations regarding the performance of a party’s obligations, according to a post on the website of Morrison Foerster. However, these terms are inconsistently interpreted by courts and are often subjectively applied.

The post’s authors discuss how these three contracting terms have been interpreted in recent court decisions and considerations with respect to the use of such terms by contracting parties.

The article concludes with a list of best practices when negotiating and drafting agreements to avoid conflict.

Read the article.

Carl R. Pebworth, a partner in Faegre Baker Daniels, asks and answers the question: What tort obligations does a design professional on a construction project owe to non-parties — like, for example, the persons who will use what has been designed after it is built?

he discusses an Illinois case in which a court addressed whether an engineer who had contracted to design a “replacement” for a bridge deck had a professional obligation to “improve” the bridge deck after it failed and third-party motorists were killed.

“As long as the design professional sticks to what the designer has contracted to do and does that work professionally, the designer cannot be obligated to go beyond those duties,” Pebworth writes.

Read the article.

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Yerra Solutions has introduced Clearly 2.0, a legal spend management system that works by combining technology and human intelligence to simplify invoice handling and derive greater savings from the eBilling and spend management process.

The solution provides 100 percent global invoice capture, configures workflows, offers advanced mobile reports and flexible solutions.

“Yerra Clearly combines human intelligence & technology,” the company says on its website. “Our spend management tool is supported by a team of legal and IP spend management experts, as well as specialized analysts trained in invoice review and spend reporting. We understand that our clients have differing priorities and offer a flexible solution that enables you to choose and pay for only what you need to get the best results.”

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There are many approaches to making a law firm win stand out among the crowd, whether it’s successfully representing a client at trial, completing a significant deal, landing a high-profile lateral hire, or any of the other notable accomplishments that happen inside or outside a courtroom, points out Bruce Vincent of Muse Communications.

It’s important to have in place an effective strategy and well-executed plan aimed at prolonging your win and making sure the right people know about it, he advises.

His article covers the importance of getting the client on board with the promotional efforts, the basics of promoting law firm wins, and making law firm wins stand out.

Read the article.

President Donald Trump’s threats against NBC for news coverage he didn’t like are not unprecedented, says Dallas First Amendment lawyer Paul C. Watler of Jackson Walker LLP.

On Wednesday, after NBC reported that sources said Trump raised the idea of increasing the U.S. nuclear arsenal, the president tweeted: “With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!”

“There is a long history of American presidents criticizing the coverage they receive in the press,” said Watler. “There is an equally long history of American journalists doing their jobs despite presidential disfavor.

“A few presidents, most notoriously Richard Nixon, actually attempted to turn their dislike of the media into official retaliation by government agencies or regulators. But those vengeful efforts at official harassment were abject failures.

“The First Amendment guarantee of freedom of the press stands as a fundamental bar to the type of vindictive action that the current president seems to contemplate or encourage. As long as we have federal judges who are true to their oaths to uphold the Constitution, media organizations should be protected from efforts to intimidate or subvert independent news reporting.”

Watler, a commercial litigator, has represented numerous news media organizations over the years in First Amendment and libel matters.

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The New York Times reports that, as National Football League team owners consider President Trump’s call to fire players who refuse to stand for the national anthem, they have stumbled into one of the most consequential debates in today’s workplace: How far can workers go in banding together to address problems related to their employment?

Reporter Noam Scheiber writes that, since Trump’s call for firing players, their demonstrations now could constitute labor activity that’s federally protected, explains Matthew Bodie, a law professor at St. Louis University who is a former attorney for the labor board.

“If they’re standing up for other players’ rights to kneel in the context of their job and keep their job, it seems to me to be protected concerted activity,” Bodie said.

Read the NYT article.

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Johnson & Johnson said a $417 million verdict in a talc powder cancer case should be thrown out because three jurors were excluded by fellow panelists from the decision-making process, reports Bloomberg Technology.

“The three were wrongly left out of deliberations on the fourth-largest U.S. jury award of the year because they didn’t agree with the other nine jurors that baby powder was the cause of a lifelong user’s ovarian cancer, the company said in a request for a new trial,” according to reporter Edvard Pettersson.

The jury foreperson said that the three jurors who were excluded from the discussions about damages had expressed doubts that J&J’s product was a fault.

Read the Bloomberg article.

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New lawsuits are down — way down — in the mostly rural district that was once the national hotspot for patent disputes, reports Ars Technica, citing a study by IP litigation research company Lex Machina.

In a case called TC Heartland, in May, the Supreme Court sharply limited where patent owners can choose to file their lawsuits.

Joe Mullin writes that Lex Machina compared patent filings in the 90 days before the TC Heartland decision came down on May 22 to the 90-day period directly after the decision. Before the ruling, 377 patent lawsuits were filed in the Eastern District of Texas. After TC Heartland, just 129 cases were filed in a similar period.

“Much of that litigation seems to have moved to Delaware, where many national firms are incorporated due to favorable tax laws,” Mullin writes. “Delaware’s single judicial district had 153 patent lawsuits in the period before TC Heartland, but that shot up to 263 lawsuits in the period after the decision.”

Read the Ars Technica article.

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Sean Thomas Keely has joined Freeborn & Peters LLP’s New York office as a partner in the Litigation Practice Group and a member of the Insurance and Reinsurance Industry Team.

In May 2016, Freeborn combined with Richmond, Va., law firm Brenner, Evans & Millman P.C., which preceded the combination last March with New York City firm Hargraves, McConnell & Costigan P.C. In addition, Freeborn opened its first Florida office in May 2017, led by two veteran attorneys based in Tampa.

“We are enthusiastic about Sean joining Freeborn to bolster our Insurance and Reinsurance Industry Team and further enhance the firm’s practice in the New York market,” said Daniel Hargraves, a partner and leader of the firm’s New York office. “Sean brings significant litigation experience and deep knowledge of the legal issues that concern our insurance and reinsurance clients. He is a great addition to our team.”

Joseph T. McCullough IV, a partner and leader of Freeborn’s Insurance and Reinsurance Industry Team, said, “The firm’s recruitment of another leading reinsurance litigator further underscores Freeborn’s commitment to enhancing the depth and scope of our services to our valued insurance industry clients in the United States and abroad. We will continue to expand our team in New York as well as Chicago, Richmond and Tampa.”

Most recently a partner with Hogan Lovells in New York, Mr. Keely concentrates his practice on litigating and arbitrating commercial disputes, with a particular focus on the reinsurance industry. His cases have involved late notice, allocation and aggregation of losses, follow-the-settlements, breaches of the duty of utmost good faith, material misrepresentation, and insurer insolvency. His cases include trial verdicts in state and federal courts, and arbitration awards for clients in the United States as well as in Europe and Asia.

Keely also has handled litigation and arbitration of complex disputes for financial services providers, energy companies, manufacturers and beverage companies.

A member of the Education Committee of the AIDA Reinsurance and Insurance Arbitration Society, Keely has presented and served as chair at seminars and workshops for certified reinsurance arbitrators and industry practitioners.

Keely earned his J.D. (cum laude) from New York University School of Law and his Bachelor of Arts (magna cum laude) from Georgetown University.

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Greensfelder, Hemker & Gale, P.C., and six of the firm’s officers have been ranked in the 2018 edition of Benchmark Litigation, the annual guide to top U.S. litigation practices and attorneys.

The firm is “highly recommended” in Missouri and “recommended” in Illinois.

Greensfelder officers Thadford A. Felton, David B. Goodman, David M. Harris and Abby L. Risner are listed as “Local Litigation Stars” and firm Officers Beth M. Conran and Erwin O. Switzer are listed as “Future Stars.” “Local Litigation Stars” are partners who were consistently recommended by clients as being reputable and effective litigators. “Future Stars” are partners regarded as likely to be become “Litigation Stars” in coming editions of the guide.

Felton and Goodman are based in Greensfelder’s Chicago office and Risner, Conran and Switzer are based in the firm’s St. Louis office. Harris works from both offices.

In its analysis, Benchmark Litigation cites Greensfelder as “excellent in every enumerated area.” The publication notes the firm’s extensive experience representing clients in the oil and gas industry. The analysis also notes successes in class action, insurance coverage and product liability cases, as well as the firm’s focus on diversity and number of female litigators.

Benchmark Litigation annually ranks U.S. firms and attorneys, with an exclusive focus on litigation practice. Rankings are based on research including examination of recent case work and interviews with litigators and their clients.

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By Eric Begun
King & Fisher

You’re thinking that something about the title of this post sounds familiar, right? Information technology (IT) vendors and third party service providers have been in the spotlight for security breaches for some time (see, for example, vendor-based security lapses affecting Target, CVS, and Concentra, as just a few), and it doesn’t sound surprising that an IT vendor has been sued related to a security incident. After all, whether you’re an IT vendor or an IT customer, if you draft or negotiate contracts for a living, these situations are what you try to contract for, right?

Right…but…the recent federal class action suit filed in Pennsylvania against Aetna and its vendor surfaces several new privacy and security considerations for vendors and their customers. The vendor in question was not an IT vendor or service provider. Instead, the plaintiff’s allegations relate to Aetna’s use of a mailing vendor to send notification letters to Aetna insureds about ordering HIV medications by mail. According to the complaint, the vendor used envelopes with large transparent glassine windows – windows that did not hide the first several lines of the enclosed notification letters. The plaintiff asserts that anyone looking at any of the sealed envelopes could see the addressee’s name and mailing address – and that the addressee was being notified of options for filling HIV medications. As a result, the vendor and Aetna are alleged to have violated numerous laws and legal duties related to security and privacy.

For all vendors and service providers, but especially those that don’t focus primarily on privacy and security issues, the Aetna complaint is enlightening. To these vendors and service providers, and to their customers: Do your customer-vendor contracts and contract negotiations contemplate what Aetna and its mailing vendor may not have?

• Do your contracts for non-IT and non-healthcare services fully consider the risk of privacy and security litigation? A noteworthy facet of the Aetna case is that the mailing vendor was sued for privacy and security violations that were not exclusively due to the customer’s acts or omissions. That is, while the contents of the mailer certainly were key, the vendor’s own conduct as a mailing services provider (not an IT or healthcare provider) was instrumental in the suit being filed against the vendor (and Aetna). Vendor services that previously didn’t, or ordinarily don’t, warrant privacy or security scrutiny, may, after all, need to be looked at in a new light.
• Do your contract’s indemnification and limitation of liability clauses contemplate the possibility of class action litigation? Class action litigation creates a path for plaintiffs to bring litigation for claims that otherwise could not and would not be brought. Class action litigation against data custodians and owners for security breaches is the norm, and the possibility and expense of class action litigation is frequently on the minds of their attorneys and contract managers who negotiate contracts with privacy and security implications. But, for vendors and service providers providing arguably non-IT services to these customers – the idea of being subject to class action litigation is often not top-of-mind.
• Before entering into a contract, have you considered whether the specific vendor services being provided to the particular customer in question implicate laws you hadn’t considered? Vendors that operate in the information technology space – and their customers – generally are well-aware of the myriad of privacy and security laws and issues that may impact the vendors’ business, including, as a very limited illustration, the EU General Data Protection Regulation, HIPAA, New York Cybersecurity Requirements, Vendors that aren’t “IT” vendors (and their customers), on the other hand, may not be. For example, the Aetna mailing vendor may not have contemplated that, as alleged by the Aetna plaintiff, the vendor’s provision of its services to Aetna would be subject to the state’s Confidentiality of HIV-Related Information Act and Unfair Trade Practices and Consumer Protection Law.
• Have you considered which specific aspects of vendor services may directly impact potential legal liability, and have you adequately identified and addressed them in the contract? No, this is not a novel concept, but it nonetheless bears mention. A key fact to be discovered in the Aetna litigation is whether it was Aetna, or the vendor, that made the decision to use the large-window envelopes that, in effect, allegedly disclosed the sensitive and personally identifiable information. Given the current break-neck pace at which many Legal and Contract professionals must draft and negotiate contracts, however, unequivocally stating in a contract the details and descriptions of every single aspect of the services to be provided is often impractical (if not impossible). But, some contract details are still important.

Whether or not this class action suit is an outlier or is dismissed at some point, consider data security and other privacy and security issues in contracts and how vendor or service provider conduct may give rise to a security breach or security incident.

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Barnes & Thornburg LLP has added corporate and transactional attorney John Dickey to the Dallas office as a partner in the Corporate Department.

Dickey focuses his practice on representing domestic and international businesses in private equity, corporate finance and capital markets-related matters, including sophisticated mergers, acquisitions, divestitures, reorganizations, capital raises, reorganizations and joint ventures.

Dickey also handles complex regulatory and corporate governance issues for financial services industry clients, private equity funds, nonprofits, and family offices.

“John is a highly skilled corporate and transactional attorney who brings more than three decades of experience to the firm,” said Mark Bayer, managing partner of the firm’s Dallas office. “His work with domestic and international businesses paired with his deep corporate governance knowledge complements our expanding corporate practice and adds value for our clients.”
Dickey earned his J.D. from St. Mary’s University and received his M.P.A. from Texas Christian University, where he served as a University Fellow. He also received his bachelor’s degree from Texas Christian University.

Prior to joining Barnes & Thornburg, Dickey was a partner in the Corporate and Transactional Practice at Polsinelli LLP. Early in his legal career, Dickey was associate general counsel with General Dynamics, where he had extensive responsibility for the company’s international business matters.

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Amy Rudd has joined DLA Piper’s Litigation practice as partner in the Austin office, the firm announced.

Rudd represents clients in a range of industries, including pharmaceutical products, financial services, healthcare and insurance, among others, in complex, multi-jurisdictional litigation matters. She has also counseled clients before regulatory boards around the world, including the Federal Energy Regulatory Commission and the International Trade Commission.

“Amy is an impressive trial lawyer with a proven track record in high stakes cases,” said Loren Brown, co-chair of DLA Piper’s global and US Litigation practices. “She immediately enhances our platform both nationally and in Texas, and we’re confident that our clients will value her counsel.”

Inn a release, the firm said Rudd also maintains an extensive pro bono practice. Her work includes the successful representation of the Texas NAACP and the Mexican American Legislative Caucus in a bench trial and appellate briefing against Texas’ voter ID law in 2016.

“Amy is a highly-skilled and well-respected litigator who has tried significant cases throughout the US and abroad,” said John Guaragna, co-managing partner of DLA Piper’s Austin office. “Amy’s breadth of experience across industries and jurisdictions will help our clients evaluate and resolve disputes in ways that best serve their needs.”

Rudd is the most recent addition to DLA Piper’s US Litigation practice. Since January, the practice has welcomed partners Ilana Eisenstein (Philadelphia), Christopher Oprison (Miami), David Sager (New Jersey), John Rah (Washington, DC), Raphael Larson (Washington, DC), Thiru Vignarajah (Baltimore), and Louis Ramos (Washington, DC).

Rudd received her J.D., with honors, from the University of Texas School of Law, and her Bachelor of Journalism, with honors, from the University of Texas at Austin.

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Board certified commercial litigation attorney Bruce W. Bowman Jr. has been promoted to the position of Vice Chairman of the Dallas-based trial and appellate law firm, Godwin Bowman & Martinez PC.

In addition, Sidney H. Scheinberg, Shareholder and Chair of the firm’s Bankruptcy and Creditors’ Rights section, has been named to the Godwin Bowman & Martinez Executive Committee, where he will be closely involved in the firm’s decision-making process. Both changes are effective as of Oct. 1, 2017.

“These promotions further strengthen our Firm’s leadership,” says Godwin Bowman & Martinez Chairman and Chief Executive Officer Donald E. Godwin. “Bruce Bowman has been part of our leadership team for many years, and having him as Vice Chair helps ensure strong continuing direction for our firm. Sid Scheinberg is one of our finest attorneys, as well as one of our most creative, and productive, rainmakers. Having him as part of our Executive Committee works to enhance the production of every attorney at Godwin Bowman & Martinez.”

In a release, the firm said:

Mr. Godwin will continue as Chairman and CEO of the Firm, Jenny Martinez will remain in the role of Senior Vice President, while maintaining her duties as Treasurer, and Shawn M. McCaskill will remain as Senior Vice President and Secretary of the Firm. In addition to his responsibilities as Vice Chairman, Mr. Bowman will continue to serve as Managing Shareholder and General Counsel of Godwin Bowman & Martinez as well as maintaining his position as Co-Chair of the Firm’s Commercial Litigation Section.

Board Certified in Civil Trial Law by the Texas Board of Legal Specialization, Mr. Bowman is a highly respected litigator who has successfully handled litigation for both plaintiffs and defendants for many years, primarily in business disputes. His work has included the recovery of assets from trusts in prolonged trust and bankruptcy litigation and defending against trade secret allegations involving oil field technology in state and federal courts. He also has successfully defended directors, lawyers, accountants, financial advisors, and other professionals in many areas of business. In addition to trying hundreds of cases to verdict, he has handled numerous arbitrations, mediations and appeals before the Texas Supreme Court, federal appeals courts and the U.S. Supreme Court.

Reflecting the excellence of his practice, Mr. Bowman has been named among the Lawdragon 500 Leading Lawyers in America, is a 12-time recipient of Texas Super Lawyers honors from Thomson Reuters, and has been rated AV-Preeminent by Martindale-Hubbell, the highest peer rating for legal skills and ethics. He also has achieved a 10.0 rating from AVVO, the company’s highest attorney rating.

Sidney H. Scheinberg brings more than a quarter century of experience to businesses in the areas of bankruptcy and creditors’ rights. He is the Chair of the Godwin Bowman & Martinez Bankruptcy and Creditors Rights section, representing clients in complex and critical cases. The primary focus of his practice is on bankruptcy and business litigation matters, with an emphasis on the representation of secured creditors, such as automobile finance companies and national banking associations. His clients have included such luminaries as Bank of America, Wells Fargo, Hyundai, Honda, Toyota Financial Services, Nissan and GM Financial.

A former radio broadcaster, Mr. Scheinberg is a frequent speaker at National Association of Chapter Thirteen Trustees’ and National Creditors Bar Association meetings. Honored by peers and the public alike, he has been AV-rated “Preeminent” by Martindale-Hubbell, the organization’s highest peer rating for legal skills and ethics, selected among the Best Lawyers in Dallas by D Magazine, as well as the Top Lawyers in Houston by Houstonia Magazine, and has achieved a 10.0 “Superb” rating from AVVO, the highest attorney rating.

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Scott Thomas has joined Winston & Strawn LLP as a partner in the Dallas office.

A trial lawyer with experience in commercial litigation, securities litigation, and shareholder disputes in federal and state courts in Texas, New York, and California, Thomas joins Winston after leaving Fish & Richardson earlier this year.

“Scott stands out from his peers based on his trial experience, case savvy, and judgment,” said Tom Melsheimer, who leads the firm’s Dallas office as managing partner with Bryan Goolsby, and who worked with Scott while at Fish & Richardson. “He has been a critical member of our team for more than a decade and is another reason why the Winston team here in Dallas is second to none.”

In a release, the firm said:

“When we opened the Dallas office eight months ago, we had a vision of the kind of top-quality people we wanted and needed to attract in order to make it work, and work well,” said Bryan Goolsby, Winston’s Dallas managing partner. “Scott fits perfectly with those plans and allows us to continue growing in a manner that’s best for our clients.”

Scott has represented public and closely held companies, as well as individuals, in areas such as securities, fiduciary duty, fraud, minority shareholder claims, trade secrets, insurance coverage, and breach of contract.

He has obtained favorable results for his clients in trial, including a verdict for one of three individual minority shareholders of over $178 million, which was recognized as one of the top verdicts in the country in 2009, according to the National Law Journal. He was also recognized for his work in a highly publicized insider trading trial, which led to his prior firm’s litigation group being recognized as one of the “best” by Texas Lawyer in 2014. Recently, he has obtained summary judgments in favor of his clients as plaintiffs in significant indemnification cases in New York and California, leading to settlements right before damages trials.

Prior to his legal career, Scott worked at the international accounting firm PricewaterhouseCoopers, LLP. He holds a B.B.A. in accounting and finance from Texas Christian University, an M.A. in taxation from Baylor University, and a J.D. from Southern Methodist University Dedman School of Law.

Compliancy Group will present a webinar on HIPAA compliance. The event will be Tuesday, Oct. 17, at 2 p.m. EDT.

“Through the years of helping the Healthcare industry become HIPAA compliant and pass their HIPAA audits, we continually run into the same HIPAA compliance issues and questions,” the company says on its website. “In this webinar we will run through a HIPAA compliance checklist of what needs to be done for your organization to meet the Federal Requirements. All attendees will receive a FREE personal walk through of their organization and to answer all their questions, concerns and to focus you on what your organization needs.”

Questions discussed include:

• What do I need to do to become HIPAA compliant?
• I’ve done my Security Risk Assessment, now what?
• Is there a such thing as overkill when it comes to HIPAA?
• Can you automate HIPAA compliance completely?
• Is group or individual training sufficient?

Register for the webinar.

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Black Duck Software has posted online a complimentary webinar examining key open source software-related issues and deal points in M&A, licensing and other transactions.

Cybersecurity has become one of the areas where substantive diligence should be conducted not as an afterthought but as an integral part of the M&A process for any deal, particularly those that involve targets with any kind of online presence, Black Duck says on its website.

The continued growth in the use of open source software underscores the importance of thorough software due diligence.

Understanding these key legal and technical risks, as well as strategies for mitigating them, will help you speed and smooth negotiations, avoid protracted due diligence and get better deal terms.

Watch the webinar.

A new report by Equilar finds that companies with revenue between $1 billion and $15 billion pay their CEOs 3.7 times what they pay their general counsel.

The report (via Above the Law) puts the ratio for companies with revenue less than $1 billion at 3:1.

“But don’t go crying for in-house counsel just yet.” writes Above the Law’s Elie Mystal. “Median GC salary at the largest companies was $650,000, while the smaller companies Equilar tracked still posted at $325,000 median salary for general counsels. Which is pretty decent scratch, all things considered.”

Read the Above the Law article.

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A Las Vegas law firm has filed a class-action lawsuit against a bump stock manufacturer on behalf of all those “who tragically suffered emotional distress” as a result of the mass shooting at the Route 91 Harvest festival, the Las Vegas Review-Journal is reporting.

Authorities have said unman Stephen Paddock used an attachment on semi-automatic weapons known as a “bump stock” to increase the firing capacity of his rifles when he killed 58 and injured hundreds on Oct. 1.

Eglet Prince law firm filed the 30-page suit in state district court, citing claims of negligence, infliction of emotional distress, products liability and public nuisance, according to reporter David Ferrara.

Read the Review-Journal article.

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Wilmington Trust Corp., the only financial institution to be criminally charged in connection with the federal bank bailout program, reached a $60 million settlement with prosecutors Tuesday just as the corporation and four former top executives were set to go to trial on bank fraud charges, the Associated Press reports.

After the bank reached a settlement, U.S. District Court Judge Richard Andrews postponed the trial for the former executives until March, finding they currently were not prepared to move forward without the bank as a co-defendant.

“Prosecutors accused Wilmington Trust, through its senior executives, of concealing the truth about the bank’s deteriorating commercial real estate loan portfolio from bank regulators, investors and the Securities and Exchange Commission,” writes reporter Randall Chase.

Read the AP article.