A fundamental principle of contract law is that a written contract is an agreement in writing that serves as proof of the parties’ obligations, writes Virginia Whitehill Guldi of Zuckerman Spaeder LLP. What happens, however, when the parties forget some of the niceties of formalizing a written contract?

For one answer, she offers the recent decision in the case of Shank v. Fiserv, Inc., in which the Eastern District of Pennsylvania addressed Fiserv’s motion to dismiss and compel arbitration at the outset of the case.

In that case, employee Shank had been dismissed after returning from a medical leave. The company cited a reorganization, but the plaintiff claimed proffered reason was pretextual and that she had been fired in violation of various federal laws, including the Americans with Disabilities Act, the Family Medical Leave Act, and Title VII.

“Fiserv sought to dismiss the case and force arbitration, citing a ‘Mutual Agreement to Arbitrate Claims’ that Ms. Shank had signed when she was hired and that would have contractually obligated her to arbitrate her claims. However, Fiserv’s argument had a flaw, said Ms. Shank, because it did not sign the agreement,” Guldi wrote.

The court agreed with the plaintiff.

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Attorney Michael Lyons, co-founder of the Dallas-based trial law firm Deans & Lyons, LLP, and firm partner Brian Lauten have earned selection to the 2016 D Magazine list of the Best Lawyers in Dallas.

“Brian and I take great pride in the work we do on behalf of our clients and appreciate earning the recognition of our peers,” says Mr. Lyons, who was named to the list for the fifth time.

In a release, the firm said:

Lyons has earned a reputation for using innovative trial strategies and a client-first approach in representing victims of catastrophic personal injuries, medical malpractice, product liability and wrongful death. He is equally respected for his work in complex business disputes, having successfully represented small businesses and large companies in “bet-the-company” litigation involving breach of contract, shareholder and royalty disputes, securities claims, business torts, and director and officer liability. Mr. Lyons is one of the few attorneys to earn recognition for both business and personal injury litigation in the listing of Dallas’ top attorneys.

This is Mr. Lauten’s second appearance on the list of Dallas’ best. He has extensive experience handling complex commercial litigation involving legal malpractice, professional liability, business and commercial torts, breach of fiduciary duty, contract disputes, and labor and employment matters. He is also a skilled appellate lawyer who has argued before the United States Supreme Court, the United States Court of Appeals for the Fifth Circuit, and the various Texas courts of appeal. Mr. Lauten is Board Certified in Civil Trial Law by the Texas Board of Legal Specialization, Board Certified in Civil Trial Law Advocacy by the National Board of Trial Advocacy, and Board Certified in Civil Pretrial Practice by the National Board of Legal Specialty Certification.

Former Sprint Corp chief executive William Esrey and former chief operating officer Ronald LeMay sued the United States government for allegedly concealing its investigation into accounting firm Ernst & Young LLP’s promotion of tax shelters sold to the executives, Reuters is reporting.

The suit involves a 2002 Internal Revenue Service investigation into Ernst & Young’s promotion of tax shelters to its clients, including the two executives and settled the audit with EY in July 2003, without informing the executives, the lawsuit said.

The plaintiffs alleged that the IRS helped EY conceal the details of investigation from them, which meant they could not defend themselves against allegations by Sprint about their participation in the EY-promoted tax shelter schemes, Reuters reports.

Read the article.

A potentially precedent-setting lawsuit against gun manufacturers on behalf of families of those killed in the Sandy Hook school shooting will move forward to the discovery process, a Connecticut judge ruled Tuesday, according to a report on CNN.

The trial is set for April 3, 2018. The ruling opens the way for depositions and potential access to internal documents from Bushmaster Firearms and Remington.

CNN says this would be the first lawsuit of its kind to reach the discovery phase after the enactment of the 2005 Protection of Lawful Commerce in Arms Act, or PLCAA, according to experts.

“The companies contend they are shielded under the federal legislation, which absolves gun manufacturers from liability if a firearm is ‘misused’ in a crime to kill people.” the report says.

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Data and technology management company eTERA Consulting will host a complimentary webinar focused on best practices for data preservation and litigation holds on April 28, 2016 at 11:00 a.m. EDT with panel speakers Sam Morgan, Anthony Lowe, Esq. and Debra Rushton.

This one-hour complimentary webinar will provide in-house attorneys, outside counsel and litigation support professionals with a high level approach and best practices around the topic of data preservation, and will examine the overarching concepts of a sound preservation plan.

Corporations and their outside counsel often struggle with properly preserving data and implementing legal holds – and the recent amendments to the Federal Rules of Civil Procedure (FRCP) have only led to further confusion, eTERA Consulting said in a release.  With the volume of data only increasing exponentially, it is not advantageous from a cost or liability standpoint to keep everything.  The panel of experts will provide real life prospective of the complexities of properly preserving data in large organizations.

eTERA’s Sam Morgan, Global Managing Consultant Discovery/EDRM, and leading industry experts from a financial services corporation, Anthony Lowe, Esq. and Debra Rushton, will discuss the following key topics:

• The proper framework and components of a sound preservation plan
• Utilizing the proper technologies effectively
• Practical application of preservation and litigation holds
• Recent amendments to the FRCP

This webinar is part of eTERA’s ongoing series of training and education initiatives to help legal professionals stay abreast of critical issues surrounding data management and eDiscovery. To register, click here.

The release continues:

About the Speakers:

Sam Morgan, Global Managing Consultant Discovery/EDRM, eTERA Consulting 

Sam Morgan serves as the Global Managing Consultant Discovery/EDRM for eTERA.  In this role, he is responsible for advising corporate and law firm clients on managing complex litigation and investigations encompassing all aspects of eDiscovery including collections, processing and hosted solutions. He also provides client training programs covering eDiscovery management best practices.  Given his extensive background in litigation support, eDiscovery and trial support, Morgan has become a trusted advisor to several clients in key industries including insurance, pharmaceutical, telecommunications, and manufacturing.

Anthony Lowe, Esq., Associate General Counsel and Managing Attorney

Anthony Lowe, Esq. is associate general counsel and managing attorney for the Litigation Operations Group at a financial services corporation. He assists senior management to define, enhance and manage business operations to optimize the delivery of legal services. Anthony established the Litigation Operations Group, including the Litigation Support & eDiscovery Team to bring eDiscovery in-house, which he now leads as eDiscovery counsel. In addition, he handles various litigation matters, frequently providing guidance on preservation, information governance and cybersecurity issues. Anthony frequently speaks on eDiscovery, document preservation, Bring Your Own Device (BYOD), Defensible Deletion and other issues related to electronically stored information.

Debra A. Rushton, Litigation Support Professional

Debra A. Rushton is a litigation support professional at a financial services corporation. Debra’s legal experience has focused on supporting a wide variety of litigation-related transactions and consulting on a broad range of issues especially best practices for business processes relating to eDiscovery. She frequently serves as a subject matter expert for a variety of internal technology and information management initiatives.  Debra is the Legal Hold Administrator and has experience managing the Legal Hold Process using manual processes and Legal Hold Notification software.

About eTERA Consulting

Founded in 2004, eTERA Consulting is an international, award-winning organization selected by clients to help solve the challenges of complex, big data projects in the areas of information governance, investigations, litigation, regulatory compliance, and security breach response. Built by the clients, for the clients™, eTERA provides customized data management solutions and services to Fortune 500 companies and the Am Law 100 at the intersection where legal, data analytics, security, and information technology meet. eTERA’s experienced subject matter experts ensure client engagement success by using best practices, leading technologies, and proven project management methodologies combined with exceptional client service. Having passed the most stringent security audits, eTERA is trusted by the world’s largest insurance, financial services, pharmaceutical, and energy companies. eTERA was selected by the Legal Times in 2014 and 2015 as the Best End-to-End Litigation Consulting Firm and was recognized by the National Law Journal as the nation’s top End-to-End eDiscovery Company for five consecutive years. Headquartered in Washington DC, eTERA maintains offices in Chicago, Detroit, Brussels, London, Paris and Rome.

Register for the webinar.

Now more than ever, corporate directors are finding themselves named in lawsuits, says Katherine Henderson, veteran insurance board advisor and partner with Wilson Sonsini, in a video posted by Boardroom Resources LLC.

“Today, any major decision from the company or board level seems to result in some form of legal action,” Boardroom Resources says on its website. “All this increased litigation begs the question – what’s the level of personal liability for directors on public boards and how can their liability be mitigated?”

In the video, Henderson discusses the current state of board liability, along with what you need to know about your D&O policy. She also outlines what steps to take to mitigate your risk of being sued.

Watch the on-demand video.

The New Jersey Supreme Court ruled Tuesday that two defense lawyers accused of spying on a plaintiff’s Facebook page can be prosecuted for attorney misconduct, according to a report in The Wall Street Journal.

The court described the case as involving a “novel ethical issue.”

“Two defense attorneys in New Jersey are accused of snooping on the private Facebook account of a plaintiff suing their client,” the report says. “The Facebook account was at first publicly viewable. But after the plaintiff tightened the settings and put his profile page behind a privacy wall, the lawyers didn’t stop monitoring it. A paralegal at their firm was able to get access by sending a Facebook friend request to the plaintiffs without revealing her employer.”

Read the article.

The State Department has agreed to a conservative legal group’s request to question several current and former government officials about the creation of Hillary Clinton’s private email system, reports the Associated Press.

A judge granted the group, Judicial Watch, limited discovery to ask the officials why Clinton relied on an email server in her New York home during her tenure as secretary of state.

If the judge approves of the agreement, lawyers from Judicial Watch will be allowed to depose Clinton’s top aides, including former chief of staff Cheryl D. Mills, deputy chief of staff Huma Abedin and undersecretary Patrick F. Kennedy, the report says.

Read the report.

A recent decision from the Northern District of Illinois illustrates the pitfalls that could arise from current insurance industry practices involving the issuance of privacy statements and insurance policies if done without the appropriate precautions, according to a report by Carol J. Gerner and Cinthia Granados Motley for Claims Journal.

“The process of issuing an insurance policy, either directly or through an employer group, requires care and deliberate action when it comes to issues of proper integration, documentation and transmittal,” they write.

“In Dolmage v. Combined Ins. Co. of Am., (No. 1:14-cv-3089, N.D. Ill. Feb. 23, 2016), the court denied the defense motion to dismiss a breach of contract claim based on a ‘Privacy Pledge’ document that was included in insurance policy documents provided to employees of Dillard’s department store (Dillard’s). The decision raises a novel theory by plaintiffs and warrants attention given the number of ‘privacy statements’ consumers receive in the mail every day from banks and credit card issuers and the use of third-party vendors in the management of personal data.”

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A physician signed a non-compete covenant, agreed to be enjoined if he breached, and allegedly did breach. But when his former employer asked a Providence, Rhode Island Superior Court judge to enter an injunction, the judge refused to prevent patients from being treated by a doctor of their own choosing, reports Paul E. Freehling of Seyfarth Shaw on the firm’s Trading Secrets blog.

The case involved a physician employed by a provider of health care services principally to nursing home residents. He signed an employment agreement with a non-competition covenant but several years late, he left the employer but continued treating its clients.  The company sued him and sought an order preventing him from competing with the provider.  The judge ruled, however, that the requested order would violate Rhode Island public policy.

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The protracted time for a construction case to get to trial and the attendant cost and expense has led the construction bar away from the courthouse and into the arbitration room, writes Ira M. Schulman of Pepper Hamilton LLP.

The prudent negotiation of an arbitration clause is as important to an arbitration as jury selection and jury charges are to litigation, Schulman explains.

He offers 10 individual pieces of advice, covering such topics as who can demand arbitration?, where will the arbitration be held?, how much discovery will be permitted?, how much discovery will be permitted?, and modification of award.

Read the article.

Lisa J. Banks, co-founding partner of Katz, Marshall & Banks, LLP, is co-author of the recently released book “Whistleblower Law: A Practitioner’s Guide.”

Available in eBook and print formats from its publisher, ALM’s Law Journal Press, the book is a practical, comprehensive guide to rapidly evolving whistleblower law and the numerous and often complex issues facing practitioners today from both sides of the whistleblower bar, the firm said in a release. Banks, along with Gibson, Dunn & Crutcher LLP Partner Jason Schwartz, have written a balanced view of the law useful to both whistleblower advocates and defense counsel alike.

The book’s topics include:

• Major legislation, including the False Claims Act of 1863, the Sarbanes Oxley Act of 2002, and The Dodd-Frank Act;

• Whistleblower protection for employees across a broad spectrum of industries, including the nuclear and environmental, consumer and investor, and transportation fields;

• Survey of state whistleblower laws in the 50 states and the District of Columbia;

• Whistleblower incentive programs, including those from the U.S. Securities and Exchange Commission (SEC), U.S. Commodity Futures Trading Commission (CFTC), and Internal Revenue Service;

• Unique challenges faced by whistleblowing attorneys and compliance officers; and

• Employer considerations, including preventative measures, investigations, disclosures, privilege and settlements.

In her review of the book, Danielle Brian, Executive Director of the Project on Government Oversight, said: “As a federal government watchdog, I often work with corporate and government insiders with first-hand knowledge of matters vital to the public interest. Whistleblowers are the first and best line of defense against waste, corruption, and other misconduct by the government and its contractors. This book is simply without equal as a comprehensive, non-biased guide to the current landscape of federal and state whistleblower law.”

Roel Campos, former Commissioner of the U.S. Securities and Exchange Commission and current Chair of the Securities Enforcement Practice at Hughes Hubbard & Reed added: “Lisa Banks and Jason Schwartz have given lawyers an excellent resource for navigating the growing maze of whistleblower laws that impact on nearly every practice area today. For attorneys involved in the heavily regulated financial markets, where whistleblowers are playing in increasing role, the authors not only equip practitioners with an in-depth knowledge of statutes and case law, but they also provide insightful practice tips for that can help both sides of the bar counsel their clients on the handling of whistleblower issues as they arise and unfold. This fresh look at whistleblower law and practice is a go-to resource for in-house counsel, compliance officers and whistleblowers alike.”

Bernard Gaffney has joined Wilson Elser’s Hartford, Connecticut, office as of counsel.

Formerly a partner with Rome McGuigan, P.C.in Hartford, Gaffney practices as a corporate transactional attorney and litigator, focused on matters involving commercial contracts and agreements, general and product liability and professional disputes.

In a release, the firm said Gaffney has experience in all aspects of litigation, from sensitive corporate investigations to taking first chair jury trials to verdict.

The  release continues: In handling transactional matters, Gaffney has assisted his corporate clients from the inception of deals, providing strategies and legal advice, through the drafting and negotiating various major business agreements to conclusion. He is admitted to practice in Connecticut and Massachusetts.

“When we opened the Hartford office in 2011, we focused on establishing a foothold in the Government Affairs and Lobbying arenas,” explained Brian Del Gatto, regional managing partner of Wilson Elser’s New England Region. “We are now making a concerted effort to grow our litigation and transactional practices with Bernard on board and the 40 attorneys split between our Stamford, CT, and Boston, MA, offices.”

Gaffney obtained his B.A. degree from Saint Anselm College (1989) and his J.D. degree from Suffolk University Law School (1993), where he was editor in chief of the Adelphia Law Journal and president of Delta These Phi Law Fraternity.

Earlier this year, Jim Perras, of counsel, joined the firm’s Hartford office. His practice focuses on government affairs and insurance regulatory and compliance matters.

A federal judge has ordered Bernard Madoff to submit to a deposition by lawyers for some former customers who lost money when the imprisoned swindler’s firm collapsed in December 2008, Reuters reports.

But the bankruptcy judge in Manhattan set strict limits on what Madoff can be asked, restricting questions to the meaning of more than 91,000 transactions recorded as “profit withdrawal” on the books of the former Bernard L. Madoff Investment Securities LLC.

“Madoff, 77, would be deposed at the North Carolina prison where he is serving a 150-year sentence for running a huge Ponzi scheme,” according to the report.

Read the article.

The Justice Department has sued to stop Halliburton Co. from acquiring oilfield services rival Baker Hughes, the Associated Press and CNBC are reporting.

The deal would combine two of the world’s three leading providers of those services to oil and gas companies and would create a bigger rival to the industry leader, Schlumberger.

“But Justice Department officials say in their lawsuit that the Halliburton-Baker Hughes deal threatens to raise prices and eliminate competition,” the report says.

Read the article.

The U.S. Commodity Futures Trading Commission (CFTC) Whistleblower Office announced on April 4 that it would issue an award of more than $10 million to a whistleblower whose information led to a successful CFTC enforcement action, reports Katz, Marshall & Banks on its website.

“The award was the largest the agency has ever issued. The recipient of the award and the company penalized were not disclosed — steps purposefully taken by the CFTC to protect the confidentiality of whistleblowers who are concerned about the effect that blowing the whistle may have on their career,” the firm wrote.

“Awards like this one show whistleblowers that blowing the whistle is worth the risk, and will go a long way toward solidifying the CFTC Whistleblower Program,” said Lisa J. Banks a partner in the firm.

Read the article.

Arbitration agreements are evaluated on a case-by-case basis, writes Vanessa L. Goddard, of counsel with Steptoe & Johnson.

While many are still disfavored, they are more likely to be upheld if they are not unconscionable, she writes in an article posted on the firm’s website.

“The procedural component of the unconscionability analysis usually deals with the formation of the agreement itself. This includes the characteristics of the parties (e.g., age, literacy, sophistication), the manner and circumstances under which the contract was executed, and whether terms of the agreement are hidden or complex, among other things.  The substantive component looks at the unfairness of the agreement,” according to the article.

She provides some tips that make arbitration agreements more likely to be upheld by courts in the employment context.

Read the article.

Encouraged by consumer groups and trial lawyers, federal regulators are pushing for limits on arbitration provisions in consumer contracts, writes George Calhoun in IfrahLaw’s FTC Beat.

“At its core, the debate is about whether companies may compel consumers to arbitrate rather than litigate disputes and – perhaps more significantly – bar consumers from class action remedies as part of the arbitration requirement,” he writes.

“We will not be surprised to see some companies restrict their consumer offerings or increase prices to account for these new rules.” the article continues. “If you work in American business, we urge you to take notice of these changes and review how to protect your company from undue litigation in future contracts.”

Read the article.

Photo by Jay Greinsky

Donald Trump’s campaign for the Republican presidential nomination rests on the notion, relentlessly promoted by the candidate himself, that his record of business deals has prepared him better than his rivals for running the country. But an examination of legal maneuvers around a 46-story luxury Trump condominium-hotel in Lower Manhattan provides a window into his handling of one such deal and finds that decisions on important matters like whom to become partners with and how to market the project led him into a thicket of litigation and controversy, writes Mike McIntire for The New York Times.

The buyers of some units asserted that they had been defrauded by inflated claims made by Trump, his children and others of brisk sales in the struggling project. Contrary to his claims that he rarely settles litigation, he and his co-defendants settled the case in November 2011, agreeing to refund 90 percent of $3.16 million in deposits, while admitting no wrongdoing.

A separate lawsuit claimed that Trump SoHo was developed with the undisclosed involvement of convicted felons and financing from questionable sources in Russia and Kazakhstan, the report states.

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Just days after the city of Dallas filed an R-rated defense of the City Council’s vote to ban Exxxotica from the city-owned convention center, the porn expo has fired back that Dallas officials knew exactly what they were getting when they took the porn expo’s $28,080 last year, writes Robert Wilonsky for The Dallas Morning News.

The porn expo’s response is in response to a March 25 Dallas filing, which claimed Exxxotica’s organizers misrepresented the amount of nudity and sexually oriented activity that would take place during Exxxotica’s first event at the Kay Bailey Hutchison Convention Center last August. “As far as Dallas’ attorneys are concerned, broken promises to keep women (mostly) clothed trump Exxxotica’s allegations that the City Council trampled its First Amendment rights when it voted to ban the event two months ago,” reports Wilonsky.

U.S. District Judge Sidney Fitzwater will hear Exxxotica’s motion for a preliminary injunction on April 18.

Read the article.