Clarence Webster III, writing in Bradley Arant Boult Cummings’ Labor & Employment Insights, asks and answers the question:  Can you look at an employee’s personal email account if you access it on company equipment?

“A recent opinion from the federal District Court of Maryland should at least make you think twice before doing that,” he warns. “In Levin, et al. v. ImpactOffice, the court denied a company’s motion to dismiss a former employee’s Stored Communication Act (SCA) claim, which arose out of just such a scenario. The court found that former employee Melissa Edwards could proceed with her claim because the accessed emails were retained on Gmail’s servers ‘for purposes of backup protection.'”

Webster discusses the facts of the case and concludes that employers should be wary of accessing an employee’s web-based email account without permission.

Read the article.

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A newfound memo from Kenneth W. Starr’s independent counsel investigation into President Bill Clinton sheds fresh light on a constitutional puzzle that is taking on mounting significance amid the Trump-Russia inquiry: Can a sitting president be indicted?

The New York Times reports that the 56-page memo, locked in the National Archives for nearly two decades and obtained by the newspaper under the Freedom of Information Act, amounts to the most thorough government-commissioned analysis rejecting a generally held view that presidents are immune from prosecution while in office.

Reporter Charlie Savage writes: “It is proper, constitutional, and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president’s official duties,” the Starr office memo concludes. “In this country, no one, even President Clinton, is above the law.”

Read the NYT article.

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Republican lawmakers in the House and Senate have introduced bills calling for the repeal of a just-announced regulation that would make it easier for consumers to bring class-action lawsuits against banks, reports The Los Angeles Times.

The new Consumer Financial Protection Bureau rule would ban banks and other financial institutions from forcing arbitration clauses on customers to prevent them from bringing or joining class-action suits.

Some Republicans have introduced resolutions calling for use of the Congressional Review Act, which allows Congress to new regulations created by federal agencies, writes James Rufus Koren.

Read the LA Times article.

The ABA Journal reports that only 1 percent of plaintiffs who file federal job discrimination, harassment and retaliation claims win on the merits at trial, according to an analysis by the Lex Machina legal analytics firm.

The article by Stephen Rynkiewicz discusses Lex Machina’s new employment litigation search and analysis module that covers findings of hostile work environment, retaliation and Title VII issues such as race bias, as well as discrimination based on age, equal rights, military, pregnancy and rehabilitation.

“Lex Machina reviewed nearly 72,000 cases and found that nearly three-fourths them settle, while employers prevail on summary judgment 13 percent of the time,” writes Rynkiewicz. “In more bad news for plaintiffs, only 192 damage awards since 2009 included punitive damages.”

Read the ABA Journal article.

Some former NFL players are receiving pitches for legal help in receiving checks from the league’s legal sports history aimed at retirees who sued for lying about the dangers of concussions suffered by the players.

Ken Belson of The New York Times writes, “Some players may get very little, but others with severe neurological diseases may receive as much as $5 million. Now lawyers, lenders and would-be advisers are circling, pitching their services and trying to get a cut of the money.”

Some of the ex-players with severe neurological disorders are cognitively impaired and may not understand the terms used by the lawyers who make the pitches.

Read the NYT article.

President Donald Trump’s effort to reshape influential U.S. courts by stocking them with conservative judges faces at least one significant impediment, reports Reuters: some of the courts best placed to thwart his agenda have liberal majorities that are likely to stay in place in the short-term.

“Those courts, including an influential Washington appeals court and two appellate courts that ruled against Trump in cases involving his travel ban, all had an influx of fresh liberal blood under President Barack Obama,” writes Lawrence Hurley.

Hurley explains that in Obama’s eight years in office, he was able to make enough appointments to leave a strong liberal imprint on the federal courts. At the end of his second term, nine of the 13 federal appeals courts had a majority of Democratic-appointed judges.

Read the Reuters article.

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The government’s consumer watchdog has finalized a rule that will make it easier for people to challenge financial companies in court, reports The Washington Post.

The new Consumer Financial Protection Bureau rule targets arbitration clauses, which can show up on user agreements for credit cards, bank accounts and other consumer products.

“As a condition for receiving services or products, consumers often give up their right to join a class-action lawsuit with these clauses, and instead agree to settle any disputes in a private process known as arbitration,” writes the Post‘s Jonnelle Marte.

Now the rule will ban companies from using these agreements to block consumers from joining group lawsuits. But supporters of arbitration say the clauses can help companies and consumers save money by minimizing legal costs.

Read the Post‘s article.

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Above the law and Lex Machina will present a webinar on trends and legal analytics for employment litigation on Thursday, July 13, at 12 p.m. EDT.

David Lat, founder of Above the Law, says the event will address such questions as: The What do recent political and economic changes mean for the employment litigation landscape? How can knowledge management and technological tools help litigators navigate the transformations in this sector?

Lex Machina is expanding its Legal Analytics to a new practice area, Employment Litigation, shedding light on this rapidly evolving area of law, Lat writes. The webcast will feature panelists discussing new employment litigation data, with never-before seen trends and insights about judges, parties, lawyers and law firms.

Register for the webinar.

This past term shows that the Supreme Court is really the Gorsuch Court — a trend that will likely continue well into the future, writes Jessica Mason Pieklo in Rewire.

“Gorsuch’s concurring opinion in Trinity Lutheran Church v. Comer, the case that has further opened a pipeline for direct government spending to some religious institutions, was so conservative not even Justice Samuel Alito — who happily endorsed corporate religious rights in the Hobby Lobby v. Burwell decision — agreed with it,”
Pieklo writes.

If justice Anthony Kennedy retires from the court, a second Trump appointee could move the court the most conservative in its history, she adds.

Read the Rewire article.

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Zapproved’s  2017 Summer volume offers insights from the latest e-discovery cases — and how courts are applying the FRCP to reach big decisions. The new volume is available for downloading at no charge.

The company says the publication includes summaries detailing e-discovery no-nos — from data compliance missteps to misconduct to total e-discovery breakdown. It also discusses trends in how courts are applying the new Federal Rules of Civil Procedure (FRCP) to validate best practices.

The collection covers cases with many high-profile brands, such as Wal-Mart Stores, UPS, Goodyear Tire, Angie’s List and the return of Targate. Other cases put lesser known names in the spotlight, like Fischer v. Forrest, Vir2us, Inc. v. Invincea, Inc. and OOO Brunswick Rail Mgmt. v. Sultanov.

This free volume includes abstracts of e-discovery case law from the last 10 years, plus 11 full summaries of recent 2017 cases. It reveals how the courts are bringing issues of proportionality, cooperation and preservation to the forefront:

– Gordon v. T.G.R. Logistics, Inc.
– United States v. HV1 Cat Canyon, Inc.
– Goodyear Tire & Rubber Co. v. Haeger
– Williams v. Angie’s List, Inc.
– Bird v. Wells Fargo Bank
– Fischer v. Forrest
– HCC Ins. Holdings, Inc. v. Flowers
– Vir2us, Inc. v. Invincea, Inc.
– Wal-Mart Stores, Inc. v. Cuker Interactive, LLC
– Solo v. United Parcel Serv. Co.
– OOO Brunswick Rail Mgmt. v. Sultanov

Download the 2017 volume.

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A former associate filed a national class action against Steptoe & Johnson, claiming the giant law firm pays only lip service to gender equality, but has a male-dominated leadership that discriminates against women in pay and promotions, according to a Courthouse News Service report.

Ji-In Houck, of Los Angeles, says her starting pay at the firm as a contract attorney was barely half the $165,000 that inexperienced male lawyers made — though she had come to Steptoe with two years of experience in civil litigation.

“During her three years in Steptoe’s Century City office, her salary typically was 30 percent to 40 percent less than male lawyers with comparable experience, she says in her June 22 complaint,” writes Don Debenedictis. “When she left in March 2016, she was earning $200,000 a year, compared to the $230,000 paid to men at her level.”

Read the Courthouse News article.

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Liberal activists are thrilled to be suing President Donald Trump, reports Bloomberg Law.

The article by Paul Barrett and Dune Lawrence quotes Norman Eisen, the chief White House ethics lawyer for President Barack Obama: “The reason you’re seeing a proliferation of lawsuits against President Trump is that he brought his lifelong contempt for the rule of law with him to the Oval Office.”

A varied collection of plaintiffs accuse Trump of improperly profiting from private businesses such as his Washington hotel, which has been patronized by officials from Saudi Arabia, Kuwait, and other countries.

“Yet another legal challenge has blocked a separate executive order cutting off certain federal funds from ‘sanctuary cities,’ which refuse to have their police departments help federal authorities target immigrants for deportation,” the authors report.

Even some stare and local governments are taking Trump to the courthouse.

Read the Bloomberg article.

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In a decision relying on the Fifth U.S. Circuit Court of Appeals’ application of a 19th century court ruling to Texas general partnership liability law, an agricultural wholesaler will be allowed to enforce a judgment against individual partners of a defunct agribusiness partnership.

The partners of G&K Farms, a North Dakota-based general partnership formed in 2008 to farm land in Texas, amassed debts of nearly $650,000 to Crop Production Services. G&K partners John and Dawn Keeley and Thomas Grabanski made payments on the debt until Grabanski and his wife filed for bankruptcy in 2013.

A default judgment was issued in 2014 against G&K Farms totaling more than $1.3 million, with a subsequent judgment also issued against the Keeleys based on their derivative liability as partners.

In their efforts to vacate the judgment, the Keeleys relied on the 1872 U.S. Supreme Court ruling in Frow v. De Le Vega, which they felt protected them from individual liability after Keeley avoided a finding of liability based on a guaranty he signed. Frow v. De Le Vega determined that when there are multiple defendants, if some parties present a defense and win, then the ruling can be applied to defaulting parties under certain circumstances.

“The courts had already found that there was no logical application of Frow in this case. It was simply a very thinly veiled attempt by the Keeleys to avoid their responsibilities as partners in repaying the general partnership’s debts,” said CPS’s lead appellate attorney Clayton Bailey of Dallas’ Bailey Brauer PLLC. “Crop Production Services’ trial attorneys, John Mark Stephens and Abel Leal, did a terrific job in the trial court demonstrating that the Frow doctrine did not apply.”

“This has been a protracted battle that should have been settled years ago. Nevertheless, this is a big win for CPS,” said Stephens of the Dallas law firm Johnson Stephens & Leal, PLLC, who represents CPS at trial along with partner Leal. “We are gratified that the Fifth Circuit saw through this smoke screen and affirmed the ruling of the district court.”

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A New York federal judge has ruled that no “reasonable attorney” would have sued news organizations for broadcasting or publishing seconds-long clips from the 45-minute live Facebook video of a childbirth, reports Ars Technica.

And the media outlets defendants are entitled to recover what may amount to hundreds of thousands of dollars in legal costs, writes David Kravets.

“No reasonable lawyer with any familiarity with the law of copyright could have thought that the fleeting and minimal uses, in the context of news reporting and social commentary, that these defendants made of tiny portions of the 45-minute video was anything but fair,” U.S. District Judge Lewis Kaplan of New York wrote.

Read the Ars Technica article.

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The Milwaukee Journal Sentinel reports on a pair of class-action lawsuits against Home Depot and Menards that Above the Law calls “the dumbest class action claim ever.”

As Journal Sentinel reporter Rick Romell explains:

Menards and Home Depot stand accused of deceiving the lumber-buying public, specifically, buyers of 4×4 boards, the big brother to the ubiquitous 2×4.

The alleged deception: The retailers market and sell the hefty lumber as 4x4s without specifying that the boards actually measure 3½ inches by 3½ inches.

Above the Law’s Joe Patrice explains that everybody who ever built anything already knew that 3½ by 3½ is the industry standard:

In fact, if retailers started selling boards that were 4 inches by 4 inches, they’d actually be useless because they wouldn’t match up with all the other standardized materials that assume the board will be 3 1/2″ by 3 1/2″.

Read the Journal Sentinel and Above the Law articles.

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TopVerdict.com has recognized Dallas trial law firm Simon Greenstone Panatier Bartlett, P.C. for securing the largest jury verdict in Arizona, and the largest asbestos case verdict in California, in 2016.

In Arizona, a federal jury awarded $17 million to the family of a retired civilian employee of the U.S. Navy who died from mesothelioma after working for years in the Norfolk Naval Shipyard in Virginia. The case was Coulbourn v. Crane in the U.S. District Court for the District of Arizona.

In a news release, the firm said attorneys David C. Greenstone, Jordan Blumenfield-James and Samuel Iola represented George Coulbourn’s family. Coulbourn, a shipyard machinist, repaired and maintained equipment including the removal of asbestos-containing gaskets and packing from valves. He died at age 73, less than a year after being diagnosed. After a three-week trial, jurors found Crane Co. and William Powell Co. liable for Coulbourn’s death and assessed punitive damages against both defendants.

In California, a Los Angeles jury awarded $18 million, a record verdict in a mesothelioma case tied to cosmetic talc. The case involved Philip Depoian, a prominent political figure and longtime aide to Mayor Tom Bradley, who was diagnosed with mesothelioma in May 2015.

Evidence showed Depoian was exposed to asbestos in talc products at a barber shop and through personal use of products such as Old Spice, Clubman, Kings Men and Mennen Shave Talc. Jurors found talc supplier Whittaker Clark & Daniels liable for supplying asbestos-containing talc to the manufacturers. Attorneys Jay Stuemke and Stuart Purdy represented Depoian in the case, Depoian v. American International Industries, Inc., in Los Angeles Superior Court.

“We are pleased that our verdicts have been recognized as landmarks in jurisdictions across the country. But more than that, we are very proud of the work we are doing to help all of our clients, wherever their cases may be,” said Greenstone, co-founder and shareholder of Simon Greenstone Panatier Bartlett, P.C.

Co-founder and shareholder Jeffrey Simon said, “We work hard to make sure that those who have been injured by dangerous products or workplaces get the justice they deserve.”

TopVerdict.com recognizes law firms and attorneys who have obtained the highest jury verdicts in individual states and nationwide in specific practice areas.

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Managing a defensible legal hold process is a demanding job, reports Zapproved. A lawyer must know his or her duty to preserve evidence — and issue legal holds quickly, clearly and securely as soon as litigation is reasonably anticipated.

Success requires clear strategy and the right technology to make it possible. For helpful insights,Zapproved has published an updated legal hold how-to guide. It walks through the six steps to a smooth and defensible process.

Implementing these best practices can ensure the legal hold process meets its duty:
– Use legal hold templates to reduce risk
– Uncover critical insights through custodian interviews
– Improve custodian response rates to litigation holds
– Handle terminated employees on legal hold
– Release a litigation hold
– Create a defensible preservation audit trail

Download the free guide.

A properly drafted arbitration clause with a class action waiver should be enforceable and can be a good and useful line of defense against expensive and costly litigation, especially class action lawsuits, write Jay N. Varon and Jennifer M. Keas in Foley & Lardner’s Consumer Class Defense Counsel blog.

Their article explains how arbitration works, what type of arbitration agreements are generally enforceable, what features that have or can cause problems, and how such provisions can reduce the risk of class actions.

They also discuss the possible effect or non-effect that could come from the Consumer Financial Protection Bureau’s proposed arbitration rule.

Read the article.

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Big Law Business and Catalyst will present a complimentary event in San Francisco, Successful Legal Department Management: Innovation to Control Litigation Costs and Ensure Compliance to discover how today’s top law firms are pairing innovation with technology to move litigation control in-house and on-budget.

The event will be Wednesday, June 28, 2017, 3:30-5:30 p.m. at the Bloomberg LP office at 3 Pier #101 in San Francisco 94111.

Leading in-house and outside counsel will discuss where they believe legal departments face the most pressure and how to successfully transform the management of litigation.

In addition, this event will explore:

• The necessity of developing new and innovative approaches for managing departments to keep litigation costs low
• How to prepare teams, departments and businesses to identify the benefits of technology
• How to effectively prepare for litigation, from initial investigations to trial

Register for the event.

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The 11th Circuit ruled in Liberty Surplus Ins. Corp. v. Norfolk Southern Railway Co. that the unambiguous language of Liberty’s “Completed Work” exclusion did not bar coverage for injuries sustained by a motorist injured at a railroad crossing who later sued Norfolk Southern, reports Hunton Williams.

“Before the Court is, once again, the classic case of the insurer requesting relief from the consequences of the inartfully drafted, yet plain, terms of its insurance policy,” the opinion reads.

Andrew A. Stulce writes in the firm’s Insurance Recovery Blog that the decision makes some important points:

First, courts continue to construe exclusionary provisions narrowly and against the insurer, even where the provision utilizes plain and unambiguous wording.  Second, in the context of contracts and agreements to supply services, work or operations over time, exclusions designed to bar coverage for completed work or operations must be explicit as to when the services, work or operations are deemed to be “complete.”

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