In an article in the Polsinelli blog “Polsinelli at Work,” shareholder James C. Sullivan writes about how unsettled the law is on employer/employee arbitration provisions containing class/collective action waivers. For now, some guidance on the issue may depend upon where a case is filed, and the Supreme Court likely will resolve the conflicting lower court decisions on the issue.

“Five years ago, the United States Supreme Court in AT&T Mobility LLC v. Concepcion ruled, in a 5-4 decision written by Justice Scalia, that state laws prohibiting the enforcement of consumer contracts containing an arbitration provision with a class action waiver were contrary to the Federal Arbitration Act. Within a year of that decision, the National Labor Relations Board in D.R. Horton ruled that Concepcion did not apply in the context of employee rights under the National Labor Relations Act, specifically § 7 which vest employees with the right to engage in ‘concerted activities,’ ” writes Sullivan.

The Fifth Circuit, the Second and Eleventh Circuits have ruled that class/collective action waivers in employer-employee arbitration agreements are enforceable. But in June 2016, the Seventh Circuit  turned the tide, becoming the first federal court of appeals to adopt the NLRB’s rationale in D.R. Horton. And later the Ninth Circuit adopted the reasoning of the Seventh Circuit.

Read the article.

Image by Mike Mozart

New York Attorney General Eric Schneiderman is investigating why Exxon Mobil Corp. hasn’t written down the value of its assets, two years into a pronounced crash in oil prices, reports The Wall Street Journal.

Schneiderman’s office already is looking into Exxon’s past knowledge of the impact of climate change and how it could affect its future business.

“Since 2014, oil producers world-wide have been forced to recognize that wells they plan to drill in the future are worth $200 billion less than they once thought, according to consultancy Rystad Energy,” reports Bradley Olson. “Because the fall in prices means billions of barrels cannot be economically tapped, such revisions have become a staple of oil-patch earnings, helping to push losses to record levels in recent years.”

But Exxon is the only major oil producer not to take any write-downs, leading some analysts to question its accounting practices,” Olson writes.

Read the article.

The Federal Circuit has affirmed a Western District of Texas decision disqualifying counsel for plaintiff Dynamic 3D Geosolutions LLC and dismissing its patent infringement complaint Schlumberger Ltd. without prejudice, reports IPWatchdog.

Dynamic alleged that defendant Schlumberger’s “Petrel” software infringed Dynamic’s ‘319 Patent, for systems and methods of combining seismic and well log data into a real-time, interactive three dimensional display.

But Schlumberger raised a potential conflict of interest and filed a motion to disqualify Dynamic’s counsel, Charlotte Rutherford. Rutherford previously was deputy general counsel for intellectual property at Schlumberger. The district court found that Rutherford’s work at Schlumberger was substantially related to her current work and “the evidence created an irrebuttable presumption that she acquired confidential information requiring her disqualification,” according to the report by Joseph Robinson and Robert Schaffer.

Read the article.

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Deutsche Bank AB is saying it has no intention of paying the U.S. Justice Department’s demand of $14 billion to settle high-profile probes into its packaging of mortgages in the run-up to the financial crisis, reports MarketWatch.

The Justice Department’s investigations are connected with the bank’s issuance and underwriting of residential mortgage-backed securities between 2005 and 2007, writes reporter Sara Sjolin.

In a statement, the German bank said, “Deutsche Bank has no intent to settle these potential civil claims anywhere near the number cited. The negotiations are only just beginning. The bank expects that they will lead to an outcome similar to those of peer banks which have settled at materially lower amounts.”

“The bank expects that they will lead to an outcome similar to those of peer banks, which have settled at materially lower amounts,” it added, saying it has been asked to make a counterproposal.

The Justice Department has settled mortgage-related claims with Goldman Sachs Group Inc.  for $5.1 billion and J.P. Morgan Chase & Co. for $13 billion.

Read the article.

If you want your electronic contracts to be enforceable, it is a best practice to require the counterparty to affirmatively accept the contract by checking a box or clicking a button, write Nikita A. Tuckett and Aaron Rubin on Morrison & Foerster LLP’s Socially Aware blog.

“A recent New Jersey district court decision, ADP, LLC v. Lynch, reinforces this point. Such issues most often arise in the context of website terms of use, but ADP v. Lynch involved a non-competition provision and forum selection clause contained in documentation presented to employees electronically in connection with stock option grants,” the authors write.

They continue: “ADP had presented the documentation in such a way that each employee was physically unable to click the required ‘Accept Grant’ button unless he or she had affirmatively checked a prior box indicating that he or she had read the associated documents containing the restrictive covenants and forum selection clause.”

The court denied the employees’ motion to dismiss.

Read the article.

The National Association of Corporate Directors has made available a free executive summary of “Director Essentials: Strengthening the Oversight of M&A.”

“With more than 40,000 mergers and acquisitions transacting annually, boards need to stay up to date on trends,” the company says on its website.

“Director Essentials: Strengthening the Oversight of M&A” is designed to help general counsel:

• provide guidance on director responsibilities;
• develop parameters for M&A review; and
• prepare directors to ask management the right questions.

The full publication is available exclusively to NACD members, but anyone may download a complimentary copy of the executive summary.

Download the summary.

eSignLive by Vasco has made available for downloading a new white paper that discusses the best security practices for implementing e-signatures and evaluating vendors. (See the download form below.)

“It is important to make sure your electronic signature provider meets the highest security standards. Security is at the core of a trusted digital experience between you, your employees and customers,” the company says on its website.

That means more than simply passing an audit. eSignLive recommends taking a broader view of e-signature security that also addresses:

• Choosing the appropriate level of authentication
• Protecting signatures and documents from tampering
• Making it easy to verify e-signed records
• Ensuring vendor-independent records
• Verifying the vendor has a consistent track record of protecting customer data
• Creating end-to-end trust through white-labeling and integration with your existing IAM framework

The white paper includes a best practices checklist.

When anyone signs up to help Donald Trump’s presidential campaign by making phone calls to prospective voters, they first must sign a 2,271-word nondisclosure agreement that prohibits the volunteer from  criticizing Trump or any member of his family for the rest of their lifetimes, writes Joe Ahmad in the Legal Issues in the Executive Suite blog. The blog is on the website of  Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C. of Houston.

The campaign program is the Trump Red Dialer, an online call system that connects campaign volunteers with potential voters.

“It states you cannot disparage Trump or any “family member,” which includes grandchildren and his nieces and nephews, or any of their companies,” writes Ahmad. “Try figuring out who all of these people and companies are – just try! Nor can you even disparage any of these companies’ products.:

He points out that a legal question to ask is what is the consideration – what does the volunteer get – in return for signing this broad agreement? “One guess is that it could mean they may get access to some type of confidential information. But that is neither promised nor even implied in the agreement,” he writes.

Read the article.

Six attorneys from the Texas trial law firm Deans & Lyons, LLP, have earned selection to the 2016 Texas Super Lawyers listing.

“From the start, our firm has focused on providing clients with innovative and aggressive representation. We are appreciative to receive the recognition of our peers, as it demonstrates that others respect what we are doing for our clients,” says firm co-founder Michael Lyons. “I have tremendous respect for the work of these outstanding lawyers, and I am so proud to work alongside them.”

Lyons was selected to the Super Lawyers list for a fourth consecutive time based upon his work on catastrophic personal injury cases and high exposure commercial litigation. Firm co-founder Gregory Deans also earned his fourth consecutive appearance on the list for his work in civil litigation and mass torts. Both attorneys are based in Dallas.

Houston partner Jeff Nobles and of counsel Thomas Sartwelle both were selected to Super Lawyers for the 14^th consecutive year for their work in appellate cases and civil litigation, respectively.

Dallas partners Brian Lauten and Katherine Stepp both earned their third consecutive Super Lawyers selections for their work in commercial litigation and civil litigation, respectively.

To develop the list of Texas’ top attorneys, researchers with Thomson Reuters conduct a statewide survey asking lawyers to nominate their top legal peers. A blue-ribbon panel of attorneys then assists the Super Lawyers staff with final selections. No more than 5 percent of Texas attorneys are chosen each year.

The Texas Super Lawyers list is featured in the October 2016 issues of Texas Monthly and Super Lawyers magazines and is available at www.superlawyers.com.

Earlier this year, Dallas partners Robert Bogdanowicz III, Courtney Bowline and Christopher Simmons and associate Kathleen Kilanowski were selected to the companion 2016 Texas Rising Stars listing, which honors the state’s top young lawyers.

Deans & Lyons, LLP, has offices in Dallas and Houston.

Practical Law and competitive intelligence platform Peer Monitor will present a free webinar titled “Dollars and Sense: A Real-Time Look at the Financial Performance of the Legal Industry in 2016.”

The 60-minute webinar will be Wednesday, Sept. 21, at 1 p.m. Eastern time. A brief question-and answer session will follow.

Peer Monitor will discuss key performance indicators including:

• Demand
• Practice performance
• Rates
• Realization
• Staffing
• Expenses

Presenters will be Cory Branden, Account Executive, Peer Monitor, Thomson Reuters.

Register for the webinar.

SpringCM has posted a free on-demand webinar discussing contract lifecycle management, including the capabilities as well as the benefits of implementation.

“To ensure your business is well-positioned for success in the 21st century, transforming critical business processes like contract management is pivotal,” the company says on its website. “As a result, Contract Lifecycle Management (CLM) and Contract Discovery and Analytics solutions are quickly being added to a company’s technology portfolio because they work together to help firms gain better visibility and control over their contracts.”

The title of the webinar is “Get Control of Your Contracts! How to Use Contract Management and Analytics to Accelerate Digital Transformation.”

Karry Kleeman, CRO at SpringCM, and Lloyd Alexander, VP of Contract Strategy at Seal Software, join guest speaker Andrew Bartels, vice president and analyst at Forrester Research Inc., to discuss contract lifecycle management in the 60-minute webinar.

Watch the on-demand webinar.

By Keli Johnson Swan
Scott & Scott LLP

In a civil copyright infringement claim, many users of copyrighted material are surprised to learn that once the copyright owner has demonstrated that it owns a copyright in the work, the burden shifts to the copyright user to demonstrate that it had the right to use the work in the way it was using it. For copyrighted software use, this means that not only must the user have a valid license, the use case must fall within the scope of the license terms. Software publishers actively protect their copyrighted material by pursuing audits of its consumers either directly or through entities such as BSA|The Software Alliance, or the Software & Information Industry Association (“SIIA”).

There are two vital steps to proving a consumer is innocent of copyright infringement.

1. Providing proof of purchase documentation for the license.

The license agreement itself often provides the authority for the publishers to audit any consumer of its product, but there are usually little or no guidance in the license agreement for what proof will be acceptable in a license review. This is further complicated by the fact that the BSA and SIIA issue their own set of audit standards when investigating potential compliance gaps.

In order to demonstrate a license to use software that is acceptable to the BSA and SIIA in an audit, the consumer must provide a copy of an entitlement that shows the date purchased, price paid, software version and title, quantity, and the company name. Many consumers do not keep accurate records of software purchases, particularly for products that are very old. The auditing entity will presume there is no license unless the user can provide documentation of its license, regardless of the age of the software installed.

However, there are different types of documentation that may be used to prove ownership of a license, including, but not limited to:

a. Customer purchase history reports from vendors such as CDW and Dell;
b. Dell Service Tag Reports;
c. E-mail confirmations for software purchases;
d. Microsoft Licensing Statement;
e. Adobe Licensing Statement;
f. Autodesk Licensing Statement;
g. Software publisher agreements (ex. Microsoft EA);
h. Autodesk serial numbers (if registered correctly);
i. Hardware purchases with OEM operating systems or Microsoft Office software; or
j. Software registration confirmations.
It is always helpful to acquire a report from a vendor if possible to acquire a purchase history, or alternatively, a licensing statement from the publisher itself.

2. Demonstrating compliance with license terms.

In addition to providing evidence its licenses, a consumer often must demonstrate that it has complied with the terms of the license agreement for the software installed. For example, some Home or Student versions software specifically restricts commercial use, so if a business has these versions installed and is using it to generate revenue, the license is invalid because the use case is outside the scope of the license grant.

There are more complicated use cases that also violate the terms of license agreements, ranging from geographic restrictions, installing software on affiliate or related entities’ machines without approval, installing software on servers, or installing software on hosted servers without the appropriate licenses.

In order to avoid potential copyright infringement claims and monetary penalties, it is prudent for consumers to conduct regular internal audits, consistently retain all software purchase records, and closely evaluate the use cases to ensure compliance with the relevant license agreements.

LawGeex has published a case study showing how social media company Brandwatch uses artificial intelligence to reduce costs and speed up the contract review process.

The case study focuses on Dylan Marvin, Brandwatch’s general counsel. His company employs more than 350 people.

He worked closely with LawGeex to build his own customized solution, resulting in:

• 80% reduction in time spent reviewing routine contracts
• 90% cost saving compared to using outside counsel or hiring new staff
• Legal department no longer a bottleneck
• 3 times faster deal closing

Download the case study.

Image by Gage Skidmore

Democrats on the House Judiciary Committee are asking the Justice Department to investigate the circumstances surrounding a $25,000 donation the Donald J. Trump Foundation made to Florida Attorney General Pam Bondi at a time when her office was considering whether to open a fraud investigation of Trump University, according to a Washington Post report.

The committee’s Democrats allege that the donation in 2013 “may have influenced Mrs. Bondi’s official decision not to participate in litigation against Mr. Trump,” and asks Attorney General Loretta E. Lynch to explore whether federal bribery or other laws might have been violated, report Matt Zapotosky and David A. Fahrenthold.

In a separate case, New York Attorney General Eric Schneiderman said on CNN Tuesday that his office was “concerned that the Trump Foundation may have engaged in some impropriety” and had “been looking into the Trump Foundation to make sure it’s complying with the laws that govern charities in New York.”

Read the article.

The Securities and Exchange Commission has filed civil fraud charges against the general counsel of Ohio-based chemical company RPM for allegedly mishandling the response to a U.S. Department of Justice investigation, Bloomberg Law reports.

Edward W. Moore, RPM general counsel and chief compliance officer oversaw the company’s response in 2011 when the DOJ started investigating whether its subsidiary, roofing materials company Tremco, had overcharged the government by millions of dollars on certain contracts,according to the SEC complaint.

The SEC accuses Moore of failing to disclose the investigation to RPM’s shareholders, along with his CEO, CFO and internal audit committee and auditors, in a timely manner, writes Gabe Friedman.

Read the article.

London-based venture firm Invoke Capital is betting that a startup using artificial intelligence to process legal documents and automate due diligence in mergers and acquisitions can replace the armies of lawyers needed to close billion-dollar deals, reports Bloomberg Law.

On its website, Luminance says its product “pairs the computing power of artificial intelligence with human training and experience. Luminance can process large, complex and fragmented data sets within an hour, and presents the entirety of the data room in an intuitive visualiser.”

Reporter Jeremy Kahn writes that CEO Emily Foges said in a statement that “the software can highlight important information without needing to be told what specifically to look for, according to Foges. Rather than employing attorneys to scan through thousands of documents to identify possible issues, these lawyers can now devote their time to analyzing the software’s findings and negotiating deal terms, Foges said.”

“Luminance has been trained to think like a lawyer,” Foges said in a statement.

Read the article.

George Dunn, president of CRE8 Independent Consultants, writes in a white paper posted on his company’s website, “One clear message from general legal counsel is, ‘law firms must lower fees and follow increasingly restrictive guidelines.’ In addition, law firms are now being asked what type of process improvement framework the firm is deploying.”

In the paper, he starts by posing the question: “What are the signs that your firm needs process improvement?”

He discusses the external signs, such as clients consolidating the roster of firms they engage,  client guidelines becoming increasingly restrictive as to who and what can be billed, and  clients asking for holdbacks, discounts, write-offs, alternative fee arrangements, or fixed fees.

Internal signs can include the firm writing off fees or costs billed to clients,  processes not fully mapped out and measured, and  processes not being not fully automated with up-to-date templates.

Answering “yes” to those question indicates the need for the firm to look into process improvement, Dunn writes.

He then poses questions and offers questions and offers approaches to follow. Those questions include: What type of process improvement methodologies exist for law firms? Where can process improvement be deployed in a law firm, such as transactional, litigation and operations? and What is the next step?

Dunn is an independent consultant, speaker, instructor, and author on process improvement (Total Quality Improvement, Continuous Process Improvement, Business Process Management, Re-engineering, LEAN and Six Sigma); Paperless technology planning (electronic forms, electronic content management, digital signatures, workflow, and electronic records management), and Computer System planning.

Download the white paper.

ContractWorks offers a free guide to selecting the appropriate contract lifecycle management software.

The decision to purchase and implement contract lifecycle management software is not one most companies take lightly, the company says. There are currently over 100 solutions in the market- everything ranging from bare-bones, free solutions, to extremely complex and very expensive solutions- and everything in between. Knowing where to start can be tough, that’s why we’ve put together this guide.

This guide covers:

•The top three reasons companies choose to implement contract management software
•The key benefits companies realize from implementing software
•Budget and cost considerations
•Implementation times and how this can affect the ROI of your purchase
•Security considerations for CLM solutions
•Key factors to consider when vetting providers- including solution scalability and company/vendor reputation

Download the guide.

Ten attorneys from the family law boutique Orsinger, Nelson, Downing & Anderson, LLP, have been selected to the 2016 Texas Super Lawyers listing, including five lawyers among the Top 100 in the state. No other Family Law firm in Texas has as many attorneys named to the Top 100.

Name partners Richard Orsinger, Keith Nelson, Scott Downing and Jeffrey Anderson have earned a place on the list of the top family law attorneys every year since Texas Super Lawyers was established in 2003.

Dallas partner Brad LaMorgese was named to the listing for the 13^th time. This is the fourth listing for associate Hunter Lewis of Dallas and partner Amber Liddell Alwais of San Antonio, with Dallas partners William Reppeto and Lon Loveless each earning their third selections. Marilea Lewis, of counsel in Dallas, was honored for a fifth year.

In addition, several firm lawyers earned special recognition in the exclusive listing, including:

Top 100 attorneys in Texas:

• Richard Orsinger (14 years)
• Scott Downing (5)
• Jeffrey Anderson (1)
• Brad LaMorgese (4)
• Marilea Lewis (2)

Top 50 women attorneys in Texas

• Marilea Lewis (3)

Top 100 attorneys in Dallas-Fort Worth

• Scott Downing (6)
• Jeff Anderson (3)
• Brad LaMorgese (4)
• Marilea Lewis (3)

Top 50 attorneys in Central/West Texas

• Richard Orsinger (13)

Super Lawyers selections are based on peer nominations and evaluations, as well as independent editorial research. No more than 5 percent of Texas attorneys are chosen each year. The full 2016 listing appears in the October editions of Texas Monthly and the Super Lawyers Texas issue, available online at http://www.superlawyers.com.

Fifteen-lawyeer Orsinger, Nelson, Downing & Anderson has offices in Dallas, San Antonio and Frisco, Texas.

David I. Spector and Andrew M. Smulian

Akerman LLP, a top-100 U.S. law firm, announced the firm’s succession plan for its top leadership post. David I. Spector, a member of the firm’s Executive Committee and co-chair of Akerman’s Fraud & Recovery Practice Group, was elected by a partnership vote on Sept. 9 to succeed Andrew M. Smulian as the firm’s ninth chairman and CEO. Spector will serve a 3-year term that begins Feb. 1, 2018 when Smulian concludes a decade-long tenure as chairman and CEO.

Akerman’s Executive Committee issued the following statement: “Andrew is one of the great law firm leaders of our time. He has guided Akerman through transformative growth while strengthening our commitment to be a client-driven, entrepreneurial and forward-thinking enterprise. His bold leadership has placed Akerman at the vanguard of our industry and positioned our firm to address the important challenges impacting our clients and our profession today and in the future.”

“The vision and growth strategy articulated nearly a decade ago are being realized,” said Smulian. “This is the right time to plan for succession and David is the right leader for Akerman’s future. He is an exceptional trial lawyer and has practiced at the leading edge of innovation and business transformation. He has changed the legal landscape for his clients and I am confident that he will be just as successful as our next chairman and CEO.”

Spector is a member of the firm’s Board of Directors and one of seven members of the Executive Committee. He also is the founding co-chair of one of the largest legal teams in the United States dedicated to the eradication of fraud. He previously served on Akerman’s Strategic Planning Committee and is a leader in many of the firm’s client-driven initiatives.

“I am honored by the confidence of my partners and Andrew to serve as Akerman’s next chairman and CEO,” said Spector. “Andrew is a visionary and his dynamic, forward-thinking leadership continues to guide our firm in a rapidly changing industry. I look forward to collaborating with him throughout the transition and in the years ahead.”

A news release from the firm continues:

Smulian has guided the strategic growth and management of Akerman since 2008. He is the second longest serving chairman in the firm’s 96-year history. Smulian has led Akerman’s unprecedented expansion and record financial performance through a strong commitment to client-driven growth. During his tenure, the firm has expanded from 12 to 24 offices, serving clients across the United States and Latin America, and in more than 35 countries. Headcount has reached an all-time high of more than 650 lawyers and business professionals, attracting 200 lawyers since 2008 and bolstering its core strengths in middle market M&A and complex disputes, and its many areas of practice in the financial services, real estate and other dynamic client sectors.

A commitment to collaborative innovation and transformative business practices are hallmarks of Smulian’s ongoing leadership. He has overseen the creation of the legal industry’s first law firm R&D co-venture with clients, which earned Akerman distinction as one of the top forward-thinking law firms in North America by the Financial Times. Smulian also has led the creation of one of the most diverse and inclusive law firms, ranked no. 3 among the top U.S. law firms for Hispanic lawyers by Law360; no. 19 among the top U.S. law firms for female partners by The American Lawyer; and distinguished as a leader in LGBT workplace equality with a 100 percent rating on the Corporate Equality Index. In addition, Smulian has advanced one of the most ambitious philanthropic and pro bono efforts for abused and neglected children in the family court system, which placed Akerman among the Financial Times‘ eight most innovative law firms in social responsibility. Following his tenure, Smulian will continue to play a leadership role in many of the firm’s initiatives.

Spector joined Akerman in 2009 and has built a national trial practice devoted to the investigation and litigation of complex fraud schemes, and unfair and deceptive practices, on behalf of the largest U.S. insurance companies and self-insured retailers. His work has carved a groundbreaking path in plaintiff-side fraud investigation and litigation, and developed case law that helps corporations recover financial losses caused by fraudulent acts. Spector has handled a series of cases involving issues of first impression that have had a significant implication in the eradication of fraud. Among them, Spector was lead counsel in matters resulting in trial verdicts or summary judgments relating to unlawful ownership structure of healthcare providers, medical legal referral services and statutory obligations of medical directors.

He also has significant experience in defending law firms from claims of legal malpractice and breach of fiduciary duties — one of which resulted in the successful striking of his opponents’ pleadings in a case valued at more than $1 billion. Outside the courtroom, Spector regularly acts as a trusted advisor to some of the nation’s largest insurers and retailers in their efforts to identify fraud and establish pre-suit strategies.

The partnership vote last Friday paved the way to an orderly transition process beginning in 2017. Spector will assume his new responsibilities on February 1, 2018.