Lawsuits are being filed over the Oct. 1 Las Vegas massacre that left 58 dead and more than 500 wounded when Stephen Paddock fired down on a country music festival from a nearby high-rise hotel. Among the first was a suit filed by a wounded Texas college student, seeking to hold MGM Resorts, Live Nation, Bump Stock manufacturer Slide Fire and the estate of the gunman liable, reports Androvett Legal Media & Marketing.

“There does not appear to be any dispute that Stephen Paddock was the gunman, making the move to freeze the estate a prudent decision,” says Dallas attorney Timothy Zeiger. “Injured victims will often sue the estate of the person who acted negligently, such as when a careless driver causes a traffic fatality, or in this case carries out an intentionally malicious act.

“However, despite the reported size of his estate, given the large number of potential claims related to the horrific injuries and deaths he caused, the chance that any particular victim will be justly compensated from the estate does not appear to be likely,” adds Zeiger, head of the litigation section at Shackelford, Bowen, McKinley & Norton.

It is still too early to determine the legal responsibility of MGM Resorts, Live Nation or Slide Fire, Zeiger says. He notes that unless a tragedy is “reasonably foreseeable” and not just an “isolated, and up to now, unique crime,” it will be difficult to prove negligence.

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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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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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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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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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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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Fox News general counsel Dianne Brandi will take an unspecified leave of absence from the company, in the latest sign of fallout from the network’s long-running sexual harassment scandal, reports The Washington Post.

Brandi has been named in four lawsuits filed by former Fox employees or contributors alleging harassment. And a federal investigation into Fox News’ financial practices began to focus on her role during the long tenure of its co-founder and former chairman, Roger Ailes, sources told the Post. Investigators are looking into payments made under Ailes to employees who had accused him and other executives of harassment or mistreatment.

“Brandi could prove to be a key figure in the investigation because of her long and close association with Ailes, who was ousted from Fox last year amid harassment allegations and died in May,” writes reporter Paul Farhi. “She may have direct knowledge of some of his more secretive and allegedly sinister management practices, people who are involved in the investigation said.”

Read the Post article.

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Trial and appellate attorney Clayton Bailey, co-founder of Dallas-based litigation boutique Bailey Brauer PLLC, has earned recognition for a fourth consecutive year as a “Local Litigation Star” in the Benchmark Litigation guide to the nation’s top lawyers.

Bailey was named among the leading attorneys in Texas for his general commercial litigation practice. He was also selected for his professional liability practice, competition and securities-based litigation and his international arbitration work. The 2018 edition of Benchmark Litigation was compiled after months of peer review, client-based research and a review of attorney casework.

“Earning recognition from Benchmark Litigation is certainly an honor, not only for me, but also for our firm,” said Bailey. “It serves as a strong indicator that our commitment to our clients has not gone unnoticed.”

Bailey was also recently selected to join the invitation-only National Trial Lawyers’ Top 100 civil plaintiff lawyers in Texas. Membership is extended to only those attorneys who exemplify superior qualifications, trial results and professional leadership.

Founded in 2013, Bailey Brauer has won multiple individual and firm recognitions from BTI Consulting Group, the National Law Journal, The Best Lawyers in America, Texas Super Lawyers and D Magazine.

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A pair of lawsuits allege two Florida law firms failed to pay administrative workers proper overtime wages in compliance with the Fair Labor Standard Act, reports Above the Law.

Reporter Kathryn Rubino explains: “Brandi Durrett, a case manager, is suing personal injury firm The Disparti Law Group and its founder, Lawrence Disparti over unpaid overtime wages. Jayne Hinkle, an office manager, is making similar claims against The Jodat Law Group and partner Gary Jodat.”

Plaintiffs claim their employers would use various methods to circumvent overtime compensation requirements.

Read the Above the Law article.

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When the U.S. Supreme Court begins its new term Monday, it will take up a docket filled with some of the moment’s most contentious issues: voting rights, religious liberty, protection from discrimination, and privacy in an increasingly monitored society, reports The Washington Post.

Reporter Robert Barnes quotes Justice Ruth Bader Ginsburg, who told Georgetown University law students recently: “There is only one prediction that is entirely safe about the upcoming term, and that is: It will be momentous.”

He lists three cases that will get the most attention:

* Whether the court for the first time will find that a state’s electoral districts were gerrymandered with such a partisan skew that they violate the Constitution.

* Whether prosecutors must seek a judge’s permission before securing cellphone tower records that contain months of details about a person’s whereabouts.

* Whether a wedding vendor whose religious beliefs do not condone same-sex marriage must comply with a state law that prohibits discrimination based on sexual orientation.

Read The Washington Post article.

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The Institute for Energy Law will present a webinar discussing the various climate change-based lawsuits and current trends in climate change litigation.

The event will be Wednesday, Oct. 18, 2017, at 1 p.m. EDT / 10 a.m. PDT. Information about MCLE credit and fees can be found on the registration site.

The institute is a part of the Center for American and International Law.

“Over the past few years, government entities and non-governmental organizations have moved the debate over climate change from the court of public opinion and into the courtroom,” according to the institute. “Oil and gas companies have been one of the bigger targets for such suits, where plaintiffs have alleged that the companies are responsible for rising sea levels and that they have failed to warn about the potential impacts of greenhouse gas emissions.”

Register for the event.

An article on the website of Fisher & Phillips discusses the question: Will a noncompetition agreement be enforceable against the independent contractor?

The Eight Circuit recently addressed this question in Ag Spectrum Co. v. Elder. In that case, Ag Spectrum contracted with Vaughn Elder to work as an independent contractor and entered into a three-year noncompete agreement.

“Elder argued that the agreement was unenforceable under Iowa law. He argued that because he was an independent contractor the noncompete was unenforceable per se. The district court granted Elder summary judgment on this basis, and Ag Spectrum appealed,” according to the article.

“The Eighth Circuit affirmed but on an alternative basis. The noncompete was not unenforceable per se but it was unreasonable under the circumstances.”

Read the article.

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When The Wall Street Journal broke a story about the firing of PepsiCo Inc.’s general counsel, the newspaper had some inside information: someone at WilmerHale accidentally sent a privileged memo about the case to the publication.

Above the Law recounts the story of how the memo, discussing a subpoena whistleblower/GC Maura Smith received, was sent to a group of lawyers — and the Journal.

Writer Joe Patrice speculates that “someone’s inline autocomplete got the better of them.” He also has some tongue-in-cheek advice for WilmerHale: call the whole thing fake news.

Read the Above the Law article.

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Exterro has released a new guide titled “Rule 26(f) Meet & Confer Checklist: How to Be Prepared.” The guide can be downloaded from Exterro’s website.

Preparation is key for any meet and confer conference to be successful, the company says on its website. This checklist can help a practitioner ensure you’re adequate preparation to negotiate and identify reasonable e-discovery terms within any meet and confer.

The guide includes:

• 39 Questions you must ask your legal team and your opponent before and during meet & confer
• A list of questions that will help you negotiate e-discovery parameters that are proportionate and reasonable
• Reassurance that all the necessary e-discovery questions are asked every time for every matter

Download the guide.

Lawyers expect a spate of force majeure contract lawsuits after Hurricane Harvey tore through Southeast Texas and parts of Louisiana last month, paralyzing a fifth of U.S. fuel output and pushing some oil production offline, Reuters reports.

“Many chemical and refinery plants along the U.S. Gulf Coast have already restarted operations or are beginning to ramp up after damage by Harvey,” writes Bryan Sims. “Once they do, customers may insist on reviewing contractual terms with their energy industry suppliers for the product they did not receive while plants were shuttered.”

He quotes Jessica Crutcher, an attorney for Houston law firm Mayer Brown:

“Every force majeure clause is different, especially when you’re dealing with heavily negotiated contracts in the energy sector.”

Read the article.

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When the Supreme Court opens its 2017 term on the first Monday in October, its very first cases will serve as a stark reminder of why elections matter, predicts USA Today.

Reporter Richard Wolf writes that the upcoming term stands “a real chance of being a one-two punch against workers’ rights,” says Claire Prestel, associate general counsel for the Service Employees International Union.

Wolf points out how things have changed:

When the court was asked to hear three cases on labor arbitration agreements last September, Barack Obama was president, Hillary Clinton was heavily favored to succeed him, and federal appeals court Judge Merrick Garland was in line to replace the late Antonin Scalia. Garland had a strong record of defending workers’ rights.

Read the USA Today article.

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Zapproved has published The 3 Archetypes of Corporate E-Discovery to shed light on the widening gap between corporate legal teams that have conquered their e-discovery challenges and those that are still struggling to do so — or simply haven’t prioritized it.

The report summarizes the common attitudes held by e-discovery executives — and how those beliefs are influencing behaviors, processes and priorities.

Amid this environment are the inescapable pressures nearly every legal professional faces:

• Responsibly lower costs while managing risk.
• Provide better visibility and accuracy into litigation timelines and costs.
• Expand portfolio to manage compliance and regulatory response.
• Keep up with the rapidly evolving digital data and ephemeral communications landscape.

By identifying Achievers, Strugglers and Idlers as the three predominant archetypes amongst corporate e-discovery professionals, the report shows how each attitude impacts success. Achievers, which represent 30% of the e-discovery market, believe automation is good for business and report high confidence in defensibility. That leaves 70% of e-discovery professionals struggling or disengaged.

Download the report.

Veteran trial lawyer David Elrod has joined the business and entertainment law firm Shackelford, Bowen, McKinley & Norton, LLP, as a partner in the Dallas office, marking a significant expansion of the firm’s existing litigation practice, the firm announces.

Also joining Shackelford are partner Worthy Walker, of counsel Barbara Wohlrabe and associate Hayley Ellison. The attorneys all have substantial experience in complex commercial and energy disputes in Texas and around the country.

“It’s not every day that you have the opportunity to bring upper-tier litigators such as David and his team into your firm. Their addition strengthens our litigation and trial capabilities regionally and throughout the country, while also adding a robust energy litigation section.”

Read the firm’s announcement.

The executives of some Silicon Valley companies have been forced out of their corporate positions because of sexual improprieties between themselves and employees, but one company has weathered a similar ordeal with little apparent repercussion.

The New York Times discusses the case of Upload, an entertainment and news hub for the VR industry. When the former digital media manager sued the company after she was fired, allegedly because she complained about the hostile atmosphere, the company at first denied the allegations. Then, as the Times‘ story about the suit neared publication, Upload’s CEO and president issued a statement saying, “We let you down and we are sorry.”

The Silicon Valley story took a turn. As reporter David Streitfeld writes:

In contrast to the venture capitalists who were knocked off their perches this summer by harassment complaints, Upload was scarcely dented by the publicity surrounding [the] suit. [The CEO and president] were not forced to resign. Investors did not pull their money. The company’s events continued, if in terms that were a bit more muted.

Read the NYT article.

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