Above the Law examines a case in which a district court and a lawyer got into trouble with the 11th Circuit when the lower court took the lawyer’s advice not to apply the circuit’s ruling in a remanded case.

Kathryn Rubino explains that the dispute dates to 2011, when Winn-Dixie grocery store company sued more than 100 dollar stores for violating exclusivity provisions in their lease agreements. The 11th Circuit ruled in the appeal and sent the case back to the district court for application.

The problem arose when lawyers for the dollar stores persuaded the district court not to apply the ruling.

The judges singled out Troutman Sanders lawyer Brian P. Watt for statements urging the lower court not to follow the circuit’s mandate.

“Needless to say (or maybe not), a district court cannot amend, alter or refuse to apply an appellate court’s mandate simply because an attorney persuades the court that the decision giving rise to the mandate is wrong, misguided or unjust,” the panel said.

Read the Above the Law article.

Image by BCorn MarketingDiv (Own work) [CC BY-SA 4.0 (https://creativecommons.org/licenses/by-sa/4.0)], via Wikimedia Commons

Bloomberg reports that Belinda Johnson, formerly chief business affairs and legal officer, has taken the new role with the company as part of a shakeup in the senior ranks.

“Before joining Airbnb, Johnson served as general counsel at Yahoo and Mark Cuban’s Broadcast.com,” according to reporter Olivia Zakeski. “She was named to the board of PayPal Holdings Inc. a year ago. As Airbnb’s operating chief, she becomes one of the most powerful women in Silicon Valley.”

Read the Bloomberg article.

Orly Lobel, writing in the Harvard Business Review, believes that nondisclosure agreements, or NDAs, chill competition, through expansive definitions of what must remain confidential and proprietary, reducing the ability of a discontent employee or an employee working in a hostile work environment to go elsewhere.

“Importantly, as recent studies show clearly, preventing workers from using their knowledge and skills beyond a single workplace is harmful not simply to the worker but to entrepreneurship, competition, and economic growth,” she writes.

Lobel believes that legislatures and courts should look toward imposing penalties on overreaching contracts and rendering any contract with unenforceable scope void in its entirety.

Read the article.

eSignLive by Vasco has made available a new report: “Forrester Report: The State Of E-Signature Implementation: Twenty-Five E-Signature Use Cases Show Adoption Trends,” which can be downloaded from the eSignLive website at no charge.

The Forrester Report examines 25 e-signature implementations across the United States and Europe with use cases for receivables, payables, various contracts, onboarding agreements, and travel bookings – uncovering trends in adoption, authentication, and business results.

The report covers:

• The average implementation time for e signature projects
• Reported ROI metrics from each project
• Top challenges, from browser compatibility to user training
• How solution flexibility mitigates complexity
• Biometric authentication trends
• Innovation in mobile signing

Download the report.

Dallas-based AriseBank — intended to be the world’s first “decentralized bank” —  saw its initial offering of a cryptocurrency it called AriseCoin shut down before it could get off the ground, reports The Dallas Morning News.

The Securities and Exchange Commission has halted the sale of AriseCoin, saying it was all part of a more straightforward, old-fashioned investment scam, according to economy writer Jill Cowan.

“Attempting to conceal what we allege to be fraudulent securities offerings under the veneer of technological terms like ‘ICO’ or ‘cryptocurrency’ will not escape the commission’s oversight or its efforts to protect investors,” Shamoil T. Shipchandler, director of the SEC’s Fort Worth Regional Office, said in a statement.

The company company had said it raised $600 million ahead of its initial offering of the new currency.

Read the Dallas News article.

The Fifth Circuit en banc has handed down an historic re-working of the test for determining whether oilfield contracts are maritime or non-maritime in nature, according to a Baker Donelson post.

Christopher Hannan writes that the en banc decision in In Re Larry Doiron, Inc. simplifies decades’ worth of confusing and often inconsistent jurisprudence to give a more streamlined and hopefully predictable rule for determining whether oilfield contracts are maritime or not.

He quotes the en banc ruling:

First, is the contract one to provide services to facilitate the drilling or production of oil and gas on navigable waters? . . . Second, if the answer to the above question is “yes,” does the contract provide or do the parties expect that a vessel will play a substantial role in the completion of the contract? If so, the contract is maritime in nature.

Read the article.

Carlton Fields shareholder Eleanor M. Yost asks and answers the question: What is the difference between an employment agreement that says “I hereby assign inventions I create during my employment to my employer,” and one that says “I will assign inventions I create during my employment to my employer”?

The difference, she writes, is one word … and possibly millions of dollars.

The article on the firm’s website discusses a case from the U.S. Court of Appeals for the Federal Circuit that affirmed a decision that an employment agreement providing an employee “will assign” title to her inventions to her employer did not automatically transfer title or any related patent rights.

Read the article.

Melinda Burton, writing for Faruki Ireland Cox Rhinehart & Dusing, explains how a ruling from the Supreme Court of Ohio reaffirms and clarifies law in Ohio on breach of contract, implied duty of good faith, punitive damages, releases of liability and fraud.

In the article, she writes that Lucarell v. Nationwide Mutual Insurance Company covers many issues that arise often in actions involving contracts, and it should be kept as handy reference to aid in briefing of issues before trial courts or explaining the current state of the law to clients.

She discusses punitive damages and the implied duty of good faith, releases of liability, and fraud.

Read the article.

In its determination to reverse a two-decade slump in U.S. stock listings, the SEC might offer companies an extreme incentive to go public: the ability to bar aggrieved shareholders from suing, reports Bloomberg.

The Securities and Exchange Commission has privately signaled that it’s open to at least considering whether companies should be able to force investors to settle disputes through arbitration, an often closed-door process that can limit the bad publicity and high legal costs triggered by litigation, writes Benjamin Bain.

“But allowing companies to shield themselves from shareholder lawsuits would almost certainly enrage investor advocates and Democratic lawmakers, a combination that helped defeat a 2012 attempt by private-equity giant Carlyle Group LP to prohibit investor suits as part of its IPO,” Bain explains.

Read the Bloomberg article.

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Aetna has agreed to pay $17.2 million and to implement a “best practices” policy regarding sensitive policyholder data, in order to settle class action litigation brought against it arising from a mass mailing sent by one of its mailing vendors, according to a post on the website of King & Fisher.

Eric Begun explains that the newly announced settlement provides some important lessons in contract law, as well as some useful information on data breaches.

The federal class action litigation was brought against Aetna and its mailing vendor in 2017 based on the vendor’s use of glassine envelopes to communicate HIV medication information to Aetna insureds. The envelopes revealed that the named addressee was contacted about options for filling HIV medication prescriptions. The litigation alleged violations by Aetna and its vendor of several laws and legal duties related to security and privacy.

The contract lessons for customers and vendors that arise from the events in question, which were identified in the earlier post, remain the same. Do your contracts for non-IT and non-healthcare services fully consider the risk of privacy and security litigation? Do your contract’s indemnification and limitation of liability clauses contemplate the possibility of class action litigation? 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? And, 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?

Read the article.

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Fortune is reporting that  Qualcomm has been hit with a massive $1.23 billion antitrust fine in the European Union, for illegally paying billions of dollars to Apple to make sure that its components were used in iPhones and iPads.

Reporter David Meyer writes: “The payoffs ensured that rival manufacturers of LTE baseband chipsets—the components that let mobile devices connect to cellular networks in order to provide internet connectivity—had no chance of getting into Apple’s devices for half a decade.”

The commission found that Qualcomm effectively shut down competition in the market, no matter how good competitors’ products were.

Read the Fortune article.

There will be a lot of familiar faces in U.S. District Judge Dan Polster’s courtroom in Cleveland on Jan. 31, when lawyers gather for a hearing on multidistrict litigation against the nation’s opioid manufacturers and distributors, writes Daniel Fisher, a contributor for Forbes.

“The prospect of the biggest payday since the $200 bill­­ion tobacco settlement in 1998 has drawn many of the same plaintiff lawyers who appear again and again in big tort cases over everything from VW diesels to Vioxx to the BP Deepwater Horizon disaster,” according to Fisher.

Some of those firms include Simmons Hanly Conroy, the Lanier Firm, Seeger Weiss, Lieff Cabraser, Motley Rice and Weitz & Luxenberg.

Read the Forbes article.

Tim Cummins, President & CEO of  the International Association for Contract & Commercial Management, discusses the ongoing evolution of commercial contract management in a podcast posted by Determine Inc.

He says the future of contracts will be far more versatile and adaptive, with technology and dynamic processes driving the way organizations structure.

He has seen a dramatic increase in senior executive interest and awareness of the potential that contracting holds. More and more organizations are recognizing that misalignment is stunting their ability to be flexible, agile and creative, Determine says on its website.

Listen to the podcast.

The recent Parity wallet “freeze” provides yet another example of a coding vulnerability in a smart contract (rather than a flaw in the underlying blockchain or cryptography) resulting in an exploit that compromises cryptocurrency worth millions, according to Proskauer Rose LLP’s Blockchain and the Law.

Wai Choy and Pengtao Teng write: “It again highlights some of the pitfalls of insecure code in the context of digital assets and raises questions regarding the extent to which software developers can be held liable to its users for losses suffered due to those oversights. As blockchain-related software that serve as storage vaults for digital assets continue to proliferate, it will be interesting to see how industry standards and the existing software liability regime in the U.S. and other jurisdictions evolve to reflect the critical role of secure software in the ‘Internet of Value.'”

Read the article.

Gabriela Smith, writing for Nearshore Americas, discusses several key standard clauses that should be included to make a contract strong and reliable.

“As lawyers, we constantly encounter less than ideal scenarios day in and day out when parties – for whatever their reasons – fail to sign a good contract, or even sign a contract at all,” she writes. “However, having a good service contract that is tailored to the particular situation can be one of the best decisions that a company can make.”

She discusses recitals, payment terms and timing, commissions, law and venue, work product, confidential information, termination, assignment, and modification and amendment.

Read the article.

NAVEX Global will present a complimentary webinar on recent and anticipated enforcement and regulatory changes as they relate to third-party risk.

The online event will be Thursday, Jan. 25, at 1 p.m. EST / 10 a.m. PST.

Michael Volkov, renowned FCPA and third-party due diligence expert, will help participants learn about new FCPA policies and DOJ advice, data privacy regulations coming in May and more.

Participants also will learn what’s ahead in the world of anti-bribery, corruption and third-party risk management efforts.

Anyone who can’t watch the live online event may register to receive a recording of the webinar afterwards.

Register for the webinar.

A group of 22 Democratic state attorneys general, including those from California and New York, filed a lawsuit Tuesday seeking to block the Federal Communications Commission’s repeal of tough net neutrality rules for online traffic, according to The Los Angeles Times.

The AGs’ complaint argues that the vote last month by the Republican-controlled FCC was an “arbitrary and capricious” change to regulations, writes reporter Jim Puzzanghera.

“The repeal of net neutrality would turn internet service providers into gatekeepers, allowing them to put profits over consumers while controlling what we see, what we do and what we say online,” said New York Atty. Gen. Eric T. Schneiderman, who is leading the suit.

Read the LA Times article.

Zapproved has published a report providing insights from a PREX17 summary on meeting the new GDPR rules by May 2018. The summary may be downloaded free of charge.

In May 2018, the General Data Protection Regulation (GDPR) will go into effect, requiring companies that do business in Europe to adjust their strategies for data management. The GDPR standardizes data protection law across the member countries, but it doesn’t specifically address preservation and discovery for U.S. legal proceedings.

The PREX17 session summary, “Data Privacy, the GDPR and Security All in One” explores the practical considerations for this transition with insight from Intel’s Dan Christensen, U.S. Magistrate Judge Elizabeth Laporte and Jeane Thomas, Partner at Crowell & Moring LLP.

It discusses strategies to address:

• Article 30 requirements for detailed record keeping
• U.S vs EU perspectives on cross-border discovery and personal privacy rights
• ISO2l701 certification

Download the summary.

Dennis Garcia, an assistant attorney general of Microsoft Corp., offers a collection of best practices that all lawyers can embrace to help earn trust during the contract lifecycle.

“In our rapidly changing and highly competitive legal and business environments, earning trust is more important than ever—especially during contract negotiations as that may be the first opportunity for parties to work with each other,” Garcia writes for Bloomberg Law.

He discusses several practices under the headings: actively learn about the other party, be empathetic, provide thoughtful rationales on contract issues, meet face-to-face, embrace smart risk-taking, don’t over-lawyer, little things mean a lot, small and empowered negotiating teams, always keep your cool, and post-contract signing.

Read the article.

A new book by the former general counsel of American Airlines tells the story of the company’s journey from the brink of insolvency following the loss of two of the airline’s jets in the Sept. 11, 2001 attacks through the most successful corporate bankruptcy and restructuring in U.S. history.

The Dallas Business Journal, with The Texas Lawbook, has an advance copy of Gary Kennedy’s “Twelve Years of Turbulence: The Inside Story of American Airlines’ Battle for Survival,” scheduled for release in February.

According to writer Mark Curriden, the book reveals that American Airlines paid lawyers and financial advisers involved in the bankruptcy proceedings $300 million – or $500,000 a day. It also goes behind the scenes of the terrorist attacks of 2011.

Read the Dallas Business Journal article.