A federal judge in New Jersey has criticized Samsung Electronics America and its lawyers at Squire Patton Boggs for alleged “poor judgment and a misunderstanding” of their obligations in litigation involving two would-be class actions, reports the ABA Journal.

At a status conference in November, Squire Patton Boggs partner Philip Oliss told the judge that his firm was having “an incredibly difficult time in terms of the turn-around between here and Seoul, Korea.”

U.S. District Judge William Martini said Oliss’ representation is “as if his firm of over 1,500 lawyers (including several located in Seoul) and its client, a giant multinational conglomerate, were restricted to Eighteenth-century lines of communication.”

Read the ABA Journal article.

The language in a forum selection clause is critical if you want to ensure that potential litigation takes place on your “home court,” writes Shep Davidson in the Burns Levinson In-House Advisor blog.

“Indeed, as the defendants in Genis v. Campbell recently learned, having a less than all-encompassing and precise forum selection clause can lead to unintended results,” he writes.

Defendants in that suit tried to invoke a forum selection clause in a license agreement and in an employment agreement that would have kept the litigation in Ohio, but the plaintiff prevailed in having the case processed in Massachusetts. The Superior Court found that the suit seeks redress for alleged misappropriation of intellectual property, not covered by the two agreements.

Read the article.

Because there is no single definition of what circumstances are force majeure, parties to a contract must agree upon what will be considered force majeure for purposes of that contract, advises Elizabeth A. Whitman for Whitman Legal Solutions, LLC.

Writing in the Whitman blog, she says that the parties should work with their attorneys to determine what types of circumstances should be listed given the nature of the specific contract.

“Parties to a contract generally agree that it isn’t fair to require performance of a contract in accordance with its terms if certain uncontrollable or extraordinary situations arise.  Therefore, many contracts include in them what are known as ‘force majeure clauses,’ which relieve all parties to a contract from performing under certain extraordinary circumstances,” she explains.

She lists some examples of conditions that might be included in a definition of force majeure.

Read the article.

Employment and labor law firm Littler has released the results of its seventh annual survey, completed by 1,111 in-house counsel, human resources professionals and C-suite executives. The Littler Annual Employer Survey, 2018 analyzes the impact that sweeping regulatory changes and other factors, including the #MeToo movement, are having on employers.

The firm summarized its findings:

Following a year that brought several changes to workplace policy, the survey shows employers feeling some regulatory relief with the change in administration, while cautiously anticipating less of an impact from key regulatory issues over the next year. The portion of respondents expecting a significant impact from the Affordable Care Act dropped from 33 percent in the 2017 survey to 15 percent in 2018, with similar drops in significant concern around enforcement by the U.S. Department of Labor (25 percent to 16 percent) and the National Labor Relations Board (13 percent to 8 percent).

At the same time, employers feel buffeted by the burdens created by abrupt and dramatic regulatory changes, slow-moving confirmations to key government agency positions and the growing patchwork of state and local labor and employment requirements. The majority of respondents (64 percent) said that reversals of workplace policies and regulations between presidential administrations put a strain on their businesses and 75 percent said they faced challenges as states and localities work to fill perceived policy vacuums at the federal level.

“Companies want certainty more than anything,” said Michael Lotito, co-chair of Littler’s Workplace Policy Institute. “The vast majority of employers want to comply with the law and the continuous reversals of federal workplace policy, as well as the increasingly fragmented and sometimes contradictory rules at the state and local level, is an enormous distraction for them. Uncertainty means inability to plan, budget and anticipate, and it requires constantly retraining employees and reformulating employment policies.”

Of the changes that occurred during the first year of the Trump administration, respondents identified the rollback of wage-and-hour policies (62 percent) and the new tax bill (62 percent) as the areas that have most significantly impacted their businesses.

Immigration Reform Focuses on Visas and Enforcement

Amid tightening regulation and enforcement of both legal and illegal immigration, employers expect a range of immigration-related changes to significantly impact their workplaces over the next year.

Tighter restrictions on visa adjudications, such as those for employees with specialized skills and temporary workers, was the top concern selected by 48 percent of respondents. More than a third (36 percent) expressed concern with increased workplace immigration enforcement by U.S. Immigration and Customs Enforcement and associated agencies.

“It’s not surprising that the visa process and immigration enforcement emerged as employers’ top concerns,” said Jorge Lopez, chair of Littler’s Global Mobility and Immigration Practice Group. “The increased scrutiny being applied to employment visas and rule changes impacting visa programs, which often come mid-stream and without prior warning, make it difficult for employers to plan ahead and manage their workforces. In addition, the increase in worksite enforcement and raids have naturally heightened employers’ focus on worksite compliance issues and properly addressing those concerns.”

Continued Workplace Discrimination Enforcement Expected Amid Focus on Harassment

The survey showed virtually no change in the impact employers anticipate from enforcement by the Equal Employment Opportunity Commission (EEOC) over the next year, with 76 percent anticipating an impact in the 2017 survey and 77 percent in 2018. This aligns with a key finding from Littler’s Annual Report on EEOC Developments – that the Commission actually filed more lawsuits in fiscal year 2017 than it has since 2011.

Employers surveyed expect the EEOC’s top enforcement priorities in the near-term to be harassment claims (64 percent), hiring practices (53 percent) and retaliation against employees who file discrimination or harassment claims (48 percent).

“Employers are right to expect the EEOC to continue to vigorously investigate workplace discrimination claims, particularly harassment claims and other EEOC priorities, regardless of upcoming changes at the Commission with an expected new chair, commissioner and general counsel,” said Barry Hartstein, co-chair of Littler’s EEO & Diversity Practice Group. “With the #MeToo movement and the EEOC’s focus on stemming the tide of harassment in the workplace, taking steps to minimize the risk of harassment claims should be a top priority for employers. We also should expect an active plaintiffs’ bar threatening and initiating private lawsuits during the coming year based on these developments.”

Sexual Harassment and Pay Equity Rank as Top Concerns for Employers

Among the many headline-grabbing issues swirling through the workplace, the majority of survey respondents (66 percent) ranked sexual harassment as the most or second-most concerning issue on their radar.

In the wake of the cultural shift sparked by the #MeToo movement, 55 percent of respondents have added training for supervisors and employees, and 38 percent have updated human resource policies or handbooks. However, only 13 percent have implemented new tools or investigation procedures to manage employee complaints and 24 percent have not made any changes over the past year.

“No company can afford to ignore this issue, and while many already have a good foundation, the past several months have shown the importance of reevaluating and reinforcing policies and procedures,” said Helene Wasserman, co-chair of Littler’s Litigation and Trials Practice Group. “While the law governing harassment in the workplace hasn’t changed much, employee expectations have. In addition to providing training and updating policies, it’s critical that companies have effective complaint procedures in place and that employees feel confident that reports of potential misconduct will be taken seriously and acted upon.”

Gender pay equity followed sexual harassment as the second-most concerning issue in the headlines for employers, with 41 percent placing it among their top two concerns. Companies reported taking action as a result, including conducting audits of current pay practices and salary data (61 percent) and revising hiring practices, such as updating job applications and ceasing the practice of asking candidates about prior salaries (34 percent). However, only 14 percent have modified compensation policies or taken steps to facilitate advancement of female and minority employees.

“Conducting audits is a critical first step to identifying pay disparities among employees, but with continued attention to this issue and an evolving legal landscape, an audit is just the beginning of addressing pay equity in the workplace,” said Denise Visconti, a shareholder heading the Littler Pay Equity Assessment. “As time goes on, pay disparities only become more intractable, so proactively addressing this issue helps companies mitigate risk and reinforce their commitments to treating employees equally and fairly.”

Employers Start to Embrace Data Analytics and Artificial Intelligence

Recruiting and hiring is the most common use of advanced data analytics and artificial intelligence, adopted by 49 percent of survey respondents. Employers also said they were using big data to guide HR strategy and employee management decisions (31 percent), analyze workplace policies (24 percent) and automate tasks previously performed by humans (22 percent). The smallest group of participants (5 percent) are using advanced analytics to guide litigation strategy.

“It is encouraging to see employers starting to embrace the many benefits provided by big data in helping manage their most important asset, their people,” said Aaron Crews, Littler’s Chief Data Analytics Officer. “However, it appears that many employers are not aware of the significant potential to use advanced data techniques to guide litigation strategy. The ability to leverage data early in a case, to tease out insights before you ever take a deposition or begin evaluating the credibility of witnesses, is revolutionary.”

The survey results are being released at Littler’s 35th annual Executive Employer Conference taking place May 2-4, 2018, in Phoenix, Arizona.

The Swiss pharmaceutical giant Novartis announced Wednesday that a top lawyer who co-signed a $1.2 million contract to hire President Trump’s personal lawyer Michael Cohen will step down in June, reports The Washington Post.

Reporter Carolyn Y. Johnson writes that Felix R. Ehrat, group general counsel of Novartis, is retiring “in the context of discussions surrounding Novartis’ former agreement with Essential Consultants, owned by Michael Cohen,” the company said.

Joseph Jimenez, former Novartis chief executive, initiated the contract and co-signed it with Ehrat. Jimenez stepped down as chief executive in late January.

The announcement comes days after AT&T chief executive Randall Stephenson said the top official in the company’s Washington office was leaving over a consulting deal with Cohen.

Read the Post article.

Chipotle Mexican Grill Inc. on Monday reached a confidential settlement with a former employee, rather than face punitive damages for wrongfully firing her in January 2015 from the the restaurant she once managed, reports The Fresno Bee.

A Fresno jury last Thursday awarded Jeanette Ortiz $7.9 million in her wrongful termination civil case for loss of past and future wages and emotional distress against the fast-foot giant, a company that is worth about $1.3 billion, according to reporter Pablo Lopez.

Instead of letting the jury decide punitive damages, which could have been as much as nine times the original award, Chipotle’s lawyers settled with Ortiz and her lawyers for an undisclosed sum.

“In its verdict, the jury of four men and eight women ruled that Oritz was not a thief, but was a victim of a scheme to fire and defame her for filing a worker’s compensation claim for a job-related injury to her wrist caused by carpal tunnel syndrome,” writes Lopez.

Read the Fresno Bee article.

Contracting in the context of subcontractors, outsourcing, and privacy and security laws can be fast-paced, complex, and onerous, warns Katila Howard in Foster Swift Collins & Smith’s Biztech Law Blog.

“Like most contracts, complications do not typically arise until there is a breach. Furthermore, in the context of cybersecurity and outsourcing, the cost of a contractual breach can increase drastically depending on whether the incident occurred in the context of a security breach and the associated reporting requirements,” she writes. “Accordingly, drafting your own checklist and standard provisions that satisfy your company’s privacy and security requirements in advance can save time and money in the future.”

She provides a list of recommended subjects to cover in vendor agreements.

Read the article.

Fisher & Phillips LLP reports that a delivery driver for gig economy company DoorDash has been ordered by the 5th Circuit Court of Appeals to take his misclassification case to a private arbitrator instead of court pursuant to a valid arbitration agreement he entered into.

“The April 25 decision is a solid win for gig employers and could provide a template for how other similar businesses should structure their own arbitration agreements,” writes Richard Meneghello.

Delivery drivers for DoorDash are classified as independent contractors, but one driver filed suit, claiming wage and hour violations, and sought conditional class certification.

“If there is an agreement to arbitrate with a delegation clause…, we will consider that clause to be valid and compel arbitration. Challenges to the arbitration agreement as a whole are to be heard by the arbitrator,” the 5th Circuit said.

Read the article.

A former client of Perkins Coie and Bracewell has filed a malpractice suit against the two firms, claiming they led it into a contract that failed to protect its interests in a deal with Morgan Stanley.

Above the Law explains that plaintiff Electron Trading wanted to license its technology for spread trading — which allows investors to buy and sell securities simultaneously in an effort to capture price difference between financial instruments — to Morgan Stanley. Electron wanted the deal to include language limiting Electron’s liability for third-party intellectual property claims and maintaining their right to sue Morgan Stanley in the event of a contract breach, writes Kathryn Rubino.

The final agreement, however, did just the opposite, Electron claims.

Read the Above the Law article.

Zapproved and Hobson & Company recently partnered to research the average return on investment (ROI) that businesses gained by implementing Digital Discovery Pro for in-house ediscovery. A report on the research is available for downloading at no charge.

Zapproved reports that its research shows a 4X return on investment with an automated, cloud-based software solution.

“Companies in this study reported that for many of their investigations and legal matters, in-house ediscovery is more cost-effective than outsourcing,”  Zapproved reports. “Our experience with clients backs that up: for organizations that are ready, automating data processing and review in house is well worth the investment. But how quickly does that investment pay for itself?”

Download the report.

Attempting to advance a novel theory of law, several banks filed a class action in Illinois federal court against a grocery store chain arising out of a data breach that resulted in the theft of 2.4 million credit and debit cards, reports Jackson Lewis PC.

After the breach, the banks were required to issue new cards and reimburse its customers as required by federal law for financial losses due to unauthorized purchases, estimated by the plaintiffs to be in the tens of millions of dollars. With the litigation, the financial institutions sought to recover some of their costs from the grocery store chain that was allegedly responsible for the loss of the data.

Jeffrey M. Schlossberg explains the outcome: “Despite seemingly compelling arguments, the Seventh Circuit ultimately upheld the lower court’s dismissal of the banks’ claims finding that they were bound by the contractual provisions of their agreements. Essentially, the court ruled, by joining the credit card system, the banks accepted some risk of not being fully reimbursed for the costs of another party’s mistakes.”

Read the article.

It is easy to skim over contracts’ insurance provisions or simply defer to risk experts, but there are a few questions that should be considered during the next review of the insurance section of a contract, advises Morgan, Lewis & Bockius LLP.

The article by Michael L. Pillion and Jessica M. Pelliciotta discusses four such questions:

How do your indemnification and other risk allocation provisions interact with your insurance provisions?

What types of insurances and how much coverage should you require?

Will you know if there are changes to the insurance coverages?

Does your contract require the other side’s insurer to provide a waiver of subrogation?

Read the article.

The restaurant company that owns Seasons 52, Olive Garden, LongHorn Steakhouse, the Capital Grille and other well-known brands, agreed to pay almost $3 million to settle a lawsuit brought by job applicants who claimed they were denied employment because of their age, the EEOC said Wednesday.

The Miami Herald reports” “A complaint filed in Miami federal court in 2015 said it was ‘standard operating procedure’ for Darden [Restaurants] to disproportionately deny jobs to Seasons 52 applicants aged 40 and older, Reuters reported. That’s a violation of the federal Age Discrimination in Employment Act.”

Reporter Crystal Hill writes that the EEOC said applicants who were turned away were told they were “too experienced,” as well as, “we are not looking for old white guys.”

Read the Miami Herald article.

The Antitrust Division of the U.S. Department of Justice recently announced a settlement of criminal charges against Knorr-Bremse AG and Westinghouse Air Brake Technologies Corp. for having maintained agreements not to compete for each other’s employees, according to Locke Lord.

Authors Stephen P. Murphy and Joseph A. Farside Jr. write that one executive went so far as to state in an email that no-soliciting was a “prudent cause for both companies” and that the companies would “compete in the market.”

In announcing the settlement, an assistant AG noted that the criminal complaint was part of a broader Antitrust Division investigation into agreements not to compete for employees, typically known as no-solicit or no-poach agreements.

Read the article.

Select Counsel will present its latest In House Focus CLE program, What GCs Need to Know About Vendor, Customer and Competitor Bankruptcies, on Wednesday, May 9, 2018,  at 9 a.m. PT / 12 ET.

The event is accredited for CLE in most states and is free for in-house counsel.

Ted Storey, former general counsel of Round Table Pizza, will join Tobias Keller and Jane Kim, partners in Keller & Benvenutti LLP, to discuss a range of issues commonly presented to healthy companies when vendors, customers or competitors file bankruptcy cases. These issues include engaging in competitive behaviors, recovering claims and evaluating ongoing credit exposure, and protecting against common motions and actions taken in bankruptcy.

Here are some of the questions that will be answered during the course of the program:

1. In what ways can a competitor’s bankruptcy filing be used to your advantage?

2. What will happen to the IP you’ve licensed when the licensor files for chapter 11?

3. What are the pros and cons to buying assets in bankruptcy?

4. How can you get paid when your customer or licensee files for bankruptcy?

Register for the webinar.

One of a court’s most frequent tasks is interpreting ambiguous contracts created by the use of ambiguous language in contracts; however, by the time a court is deciding the issue, costly litigation may have taken years, write Richard Raysman and Elliot Magruder for Holland & Knight.

In a post for the firm’s Ditigal Technology & E-Commerce Blog, they discuss a recent case in which parties to a software development and license agreement confronted this unfortunate truth, and both left unsatisfied.

In Apacheta Corp. v. Lincare, Inc., Apacheta sued for breach of contract in claiming that Lincare’s termination violated the right-to-cure provision because Lincare neither provided notice of breach nor a cure period.

Read the article.

“Pay when paid” clauses are common in the construction industry, according to Bradley Arant Boult Cummings, but courts generally disfavor conditions precedent (an event that must occur before another party’s performance is due) and will not observe their existence unless they are unambiguously laid out in the contract.

The article, published by JD Supra, states that “subcontractors and general contractors should be aware that if language in a contract clearly establishes that the prime contractor is only obligated to pay the subcontractor if the owner pays the prime contractor for that work, and the contract states that the subcontractor is taking the risk of the owner’s potential insolvency, then courts are likely to enforce the contract as written—condition precedent and all. This language establishes what is known as a pay if paid clause.”

Read the article.

Although limited liability protections normally insulate business owners from personal liability for their business’s debts, lenders routinely require a small business owner to sign a personal guaranty as a condition for a commercial loan to the business entity, points out Thomas C. Wolff, writing for Ward and Smith.

This requirement essentially circumvents the statutory protection against personal liability, he writes.

“Any potential guarantor should read a proposed guaranty agreement carefully and understand each contractual provision. Often the terms can be negotiated, even if a business entity is a startup and has limited assets and income,” writes Wolff.

In the article, he discusses continuing guaranties, unlimited and limited guaranties, joint and several liability, the obligation of contribution, guaranty of payment vs. guaranty of collection, the lender’s right to set-off, and the death of a guarantor.

Read the article.

Seyfarth Shaw has some advice for franchisor when considering their legal strategy in “no-hire” agreement class actions: franchisor employers should assess whether the joint employer risk is worth accepting in order to pursue the single-enterprise defense.”

In its Workplace Class Action Blog, the firm discusses class actions claiming that provisions contained in franchise agreements prohibiting the hiring of employees of other intrabrand franchisees without the consent of their employer violate the antitrust laws.

The authors discuss the single-enterprise defense, potential joint employer liability, and other defenses.

Read the article.

DePuy Orthopaedics and Johnson & Johnson will get a new trial after the previous one in 2016 ended with the companies having to pay $151 million in damages to five plaintiffs with alleged hip replacement injuries, reports the SE Texas Record.

The Fifth Circuit found that plaintiffs’ attorney Mark Lanier’s “deceptions furnish independent grounds for a new trial” that centered on Pinnacle artificial hips and that the trial court allowed the Houston lawyer to introduce “inflammatory character evidence.”

David Yates reports that Lanier told the Record he thought the opinion was “interesting” and that the legal reasoning upholding the various actions against Depuy and J&J are strong and important and will help all future cases.

Lanier said he thought the court misunderstood the issues of monetary representations about the doctors. He added that he plans to seek a retrial.

Read the Record‘s article.