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Employers can find good news and some bad news in Seyfarth Shaw’s 14th Annual Workplace Class Action Litigation, which analyzes 1,408 rulings.

The firm has posted the 57-page report on its website and has created a microsite that provides a brief overview of the survey’s findings.

David Shadovitz of Human Resource Executive also has written a summary of the report.

Shadovitz offers the good news for employers from the report: “Legal precedents and new defense approaches resulted in better statistical outcomes for employers in opposing class-certification requests for the second straight year. For instance, in wage-and-hour litigation—one of the more active categories of employment law—employers won 63 percent of decertification rulings, a success rate of nearly 20 percent from the year before.”

On the other side of the coin, he writes, the monetary value of the top workplace class-action settlements jumped more than $1 billion to a record high of $2.72 billion.

Read the Seyfarth report.

CloudNine has posted an on-demand webinar that covers key 2017 case law decisions covered by the company’s eDiscovery Daily blog and what the legal profession can learn from those rulings.

The presentation leader is Doug, VP of Products and Professional Services for CloudNine. And special consultant is Tom O’Connor, a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.

Topics include:

• Handling objections to production requests
• Waiver of privilege and Rule 502(d)
• Case law related to subpoenaed production of international data
• Control of data stored by a third party
• Dictation of search terms and production scope by courts
• Form of production disputes and the issues involved
• Performing keyword search before Technology Assisted Review
• The state of sanctions with the new Rule 37(e)

Watch the on-demand webinar.

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.

Monday’s blowout near Quinton, Oklahoma, that killed five workers is the deadliest oil and gas incident since the 2010 Deepwater Horizon disaster in the Gulf of Mexico. As this incident moves from the recovery of the victims to the cleanup and investigation stage, a prominent Texas trial lawyer says the industry must use this tragedy as a signal to self-reflect and take stock of their safety procedures, according to a post on the website of Androvett Legal Media & Marketing.

“When it comes to rig blowouts, somebody made a mistake,” says trial lawyer Frank Branson of The Law Offices of Frank L. Branson, who has handled numerous oilfield tragedies, including involvement in a 2015 onshore rig explosion where three men died in a well blowout near Midland, Texas.

“Every driller and operator knows that well control must be maintained at all times. That’s rule number one on these rigs. A failure to control the well is inexcusable and absolutely preventable. With so much at stake, companies like Patterson-UTI and Red Mountain Energy must make worker safety – not shareholder profits – the overriding priority.

“Patterson-UTI, one of the largest onshore rig operators in the U.S., has been called out for its safety shortcomings by name in Congressional reports and has been fined by OSHA following earlier oil and gas well fatalities. As the families of those killed search for answers, it’s clear that relatively toothless regulations are not enough to ensure the safety of hardworking oilfield workers. In cases like these, American jurors will be called upon to determine who was at fault and return a verdict that will make sure these companies put worker safety first.”

Royalty owners are seeking class-action status in a lawsuit against Talisman Energy USA, Inc. over claims the company manipulated production volumes for wells operated in the Eagle Ford shale basin in South Texas, according to a post on the website of Androvett Legal Media and Marketing.

Attorneys for plaintiffs Rayanne Regmund Chesser, Gloria Janssen, and Michael and Carol Newberry filed a motion Jan. 22, 2018, seeking class certification in U.S. District Court for the Southern District of Texas and named lawyers Bryan O. Blevins Jr. and Mike Hamilton of Provost Umphrey Law Firm, L.L.P., to represent the class. The lawyers estimate approximately 4,000 royalty owners could be involved.

“It’s clear that Talisman knew what they were doing when the company voluntarily commingled production from different wells and then allocated net sales in violation of best oilfield practices and Texas law,” said Blevins. “We intend to prove that the amounts paid to the royalty owners were based on manipulated production volumes.”

The lawsuit charges that from Jan. 1, 2013, to June 1, 2016, Talisman failed to report, account for and make royalty payments based on its lease agreements. In addition, the company is accused of altering wellhead production volumes by as much as 20 percent and paying royalties based on estimated sales volumes instead of the actual amount of oil or gas sold or saved.

In 2010, Talisman entered the Texas oil and gas market in a joint venture with Statoil. In July 2013, the agreement was revised, with Statoil assuming half the well operations and Talisman operating the other half. Shortly after that, royalty owners noticed a difference in reported production volumes from Talisman compared to Statoil.

Talisman Energy USA is an indirect subsidiary of Calgary, Alberta–based Talisman Energy Inc., which was acquired by Repsol S.A. in 2015.

The case is Rayanne Regmund Chesser, Gloria Janssen, Michael Newberry and Carol Newberry v. Talisman Energy USA, Inc. No. 4:16-cv-02960 in the U.S. District Court for the Southern District of Texas, Houston Division.

Houston-based  Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing has added six litigators to its trial, the firm announced.

The new hires include:

• Matt Caldwell, with experience advising clients on regulatory and compliance matters, especially involving tax and accounting questions
• Monica Cooper,  a trial lawyer with civil and criminal experience
• Shahmeer Halepota, a commercial litigator with mediation, international arbitration, and state and federal trial experience
• Kyle A. Poelker, who handles all types of complex commercial litigation in state and federal court
• Paul Turkevich, a commercial litigator who handles a variety of business disputes
• Patrick Yarborough, a commercial litigator with experience representing clients in all aspects of litigation, including mediation, arbitration and trial

Read details about the new hires.

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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.

Exterro has published part 1 of the 2018 Judges Report, which provides an in-depth examination of how the bench views these e-discovery issues: attorney proficiency, judicial competency, how to resolve e-discovery mistakes effectively.

The report, which can be downloaded at no charge, includes:

• 10-page report on how 30 federal judges feel about e-discovery competency in their courtrooms
• Expert insights from judges on how to solve e-discovery mistakes
• Why only 23% of the judges surveyed agreed with the statement, “The typical attorney possesses the legal and technical subject matter knowledge required to effectively counsel clients on e-discovery matters.”

Download the report.

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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.

A data analysis by the Los Angeles Times has found that President Trump is ranked sixth of 19 presidents for appointing the highest number of federal judges in their first year.

Reporter Kyle Kim explains that Trump’s Republican Party’s slim majority in the Senate is one reason he has been able to fast-track judges.

“Another reason is a little bit of political warfare. Republican senators blocked 36 judicial nominations in President Obama’s first five years, according to Politifact. The best-known nominee was Judge Merrick Garland, chosen to replace the late Supreme Court Justice Antonin Scalia,” writes Kim.

Read the LA Times article.

Houston civil trial lawyer John H. Kim, founder of The Kim Law Firm, and attorney Tim Rothberg persuaded a Texas appeals court to drop a $2.9 million judgment against energy clients High Cotton Holdings LLC and Ranger O&G Operating LLC last week, according to a post on the website of Androvett Legal Media and Marketing.

The Texas 4th Court of Appeals in San Antonio found that the lawyer retained by the two energy companies prior to The Kim Law Firm filed an agreement in a breach of contract lawsuit without signing it, and failed to keep the companies apprised of court events. Due to those actions, both High Cotton and Ranger were not served with the complaint or made aware of the $2.9 million default judgment.

The 4th Court of Appeals reversed and rendered the judgments and remanded the case to state court for trial on the merits.

Read the article.

Above the Law reports that Ogletree, Deakins, Nash, Smoak & Stewart nonequity shareholder Dawn Knepper has hit her employer with a $300 million purported class-action suit alleging gender discrimination and unequal pay.

In her complaint, Knepper alleges: “Through formal policies and widespread practices, [Ogletree’s] male leadership interferes with, limits, or prevents female shareholders from receiving the appropriate credit for the business they bring to the firm and their hard work in running complex and demanding cases day-to-day.”

Kathryn Rubino writes that the complaint also alleges that on average, women shareholders make  to to $110,000 less than their male counterparts. And the complaint notes that while women represent about 58 percent of associates at Ogletree, a mere 32 percent of shareholders are women.

Read the Above the Law article.

Litigators are settling more cases as labor agencies and federal courts fill up with business-friendly appointees, reports Bloomberg.

“While employers across the U.S. paid a record amount in settlements for workplace violations last year, don’t expect this to mark the beginning of a trend. Think of it more as the storm before the calm, as labor lawyers rush to lock in payouts ahead of a shifting legal landscape,” writes Rebecca Greenfield.

She quotes Paul DeCamp a lawyer at Epstein Becker & Green who represents employers:

“I think that what we see is a race to settle. I’ve seen it in my practice. Cases that plaintiffs’ counsel felt very strongly about and seemed more bullish and willing to go to trial—since the election they were more eager to settle those cases.”

Read the Bloomberg article.

A federal judge has ordered a pair of attorneys for an environmental group to pay $52,000 in legal fees to an energy company because, the judge said, they filed a “frivolous” legal challenge to a fracking waste injection well in Pennsylvania, according to a report by StateImpact, a reporting project of NPR member stations.

“U.S. Magistrate Judge Susan Paradise Baxter of the Western District of Pennsylvania ruled the attorneys, Thomas Linzey and Elizabeth Dunne, should pay part of Pennsylvania General Energy’s (PGE) legal fees for advancing a “discredited” legal argument that had already been defeated in prior decisions,” writes reporter Reid Frazier. “In addition to the fine, the judge referred Linzey to the state Supreme Court Disciplinary Board for additional discipline.”

In her opinion, Baxter wrote:

The continued pursuit of frivolous claims and defenses, despite Linzey’s first-hand knowledge of their insufficiency, and the refusal to retract each upon reasonable request, substantially and inappropriately prolonged this litigation, and required the Court and PGE to expend significant time and resources eliminating these baseless claims.

Read the StateImpact article.

J. Brandon Sieg of Vandeventer Black LLP addresses the question of what is meant when a contract requires an architect or engineer to “defend, indemnify, and hold harmless” the project owner for specific (or not so specific) types of claims that might arise in the future.

Regarding duty to defend, he explains that: “If you agree to similar language in your design contract, then you are agreeing to hire the project owner’s lawyer to defend a lawsuit filed against the project owner.”

He also covers responsibilities that go with indemnification and “hold harmless.”

Read the article.

Exterro has published its “Comprehensive E-Discovery Workflow Guide,” which can be downloaded at no charge.

This resource compiles four checklists documenting best practices for each stage of the e-discovery process.

The guide includes:

• 4 e-discovery checklists covering (1) Preservation and Legal Holds through (2) Preparation for Discovery, (3)Search and Collection, and (4) Review and Production
• 32 workflow steps to ensure your e-discovery process is efficient and defensible
• How to communicate across teams inside and out of your organization

Download the guide.

Billionaire Ira Rennert has filed a $214 million malpractice lawsuit against his former law firm, after a jury found him liable for looting his magnesium company to build a huge mansion in New York’s Hamptons, reports Reuters.

The plaintiff claims that he would not have been liable had Kaye Scholer and partner Peter Haveles objected to faulty jury instructions that Rennert has said led to an “irrational” February 2015 verdict, according to reporter Jonathan Stempel.

The U.S. Supreme Court has already rejected his appeal of the verdict and resulting $213.2 million judgment.

“In Monday’s complaint, Renco said its former lawyers wrongly failed to object both to jury instructions that led to the ‘inexplicably inconsistent’ verdict, and to the jury’s dismissal after the verdict was read,” Stempel writes.

Read the Reuters article.

In an article for Bloomberg Big Law Business, Wiley Rein LLP’s Kirk Nahra details the top-10 U.S. and international developments in 2018 that companies must be aware of to ensure an effective information security program.

Nahra writes that “it is clear that privacy and data security has moved from an issue impacting primarily healthcare and financial services companies, to an issue that affects, in large and small ways, virtually every company across the globe. These issues affect litigation, mergers and acquisitions, product development, research, corporate strategy, business partnerships, and, in some way most activities of most companies.”

His article covers the European Union’s new General Data Protection Regulation, Privacy Shield and other data transfer obligations, non-EU data transfer programs, cybersecurity, breach litigation, FTC and Office for Civil Rights enforcement, and the role of the states.

Read the Bloomberg article.