One of the two attorneys behind the notorious Prenda Law copyright factory has finally admitted extracting more than $6 million from internet users by accusing them of illegally downloading porn, reports Forbes.

John Steele pleaded guilty to federal charges of  conspiracy to commit mail fraud and wire fraud and conspiracy to commit money laundering.

The U.S. Department of Justice alleged that Steele and co-defendant Paul Hansmeier set up an elaborate “honeypot” operation by buying rights to porn videos in the name of various shell companies and then uploading the videos to torrent sites themselves. They also produced some videos themselves, Steele admitted.

The scheme called for the two lawyers to obtain subpoenas to force internet service providers to hand over IP address of downloaders. Then they would threaten downloaders with financial penalties and public embarrassment unless the hapless victims agreed to pay a $3,000 settlement fee, writes Emma Woollacott.

Read the Forbes article.

Zapproved has published its new E-Discovery Case Law Summaries: 2017 Winter volume, covering the latest trends in applying the new Federal Rules of Civil Procedure (FRCP) to address cases involving preservation and discovery missteps.

The volume illustrates what e-discovery pitfalls to avoid and how the courts are bringing issues of proportionality, cooperation and preservation to the forefront. These rulings reflect more nuance in curing prejudice, such as ordering “measures no greater than necessary” and awarding attorney fees and permissive jury instructions, according to Zapproved.

Summaries cover the gamut of cases, from the high-profile U.S. v Volkswagen AG to the quieter Security Alarm Financing Enterprises and Arrowhead Capital Financial. Together, they add up to a snapshot of where courts are leaning and why noncompliant e-discovery practices are dangerous.

This free volume includes quick e-discovery case law abstracts from the last 10 years, plus full summaries of nine recent cases.

Download the new case summaries.

Bloomberg BNA is reporting that a package of far-reaching bills to overhaul the civil litigation process, long cherished by business and derided by consumer groups, is likely to win approval from President Trump if it reaches his desk.

Republicans are moving a batch of business-friendly bills through the House. An example is legislation calling for business-backed litigation measures, colloquially known as “tort reform.” Sherman “Tiger” Joyce, president of the American Tort Reform Association, told Bloomberg BNA that prospects for enactment fo the legislation are “certainly better than they’ve been since 2008.”

But backers of such legislation caution against reading too much into Trump’s comments on the bills, writes reporter Bruce Kaufman.

Read the Bloomberg article.

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Worker’s rights opinions written by Judge Neil Gorsuch, President Donald Trump’s pick for the Supreme Court, are often sympathetic but coldly pragmatic, and they’re usually in the employer’s favor, according to a review conducted by the Associated Press.

“A review of dozens of employment cases he heard in his decade on the U.S. 10th Circuit Court of Appeals reveals a focus on texts and a fondness for scrutinizing definitions of words in legislation and the Constitution. Conservatives herald his strict approach. Many liberals say it too often results in workers losing out,” write AP reporters Denise Lavoie and Michael Tarm.

The federal appeals court judge has sided with employers 21 out of 23 times in disputes over the U.S. pensions and benefits law, the Employee Retirement Income Security Act, or ERISA. He sided with the majorty in all 21 cases.

Read the AP article.

Chesapeake Energy Corp. and the estate of co-founder and former CEO Aubrey McClendon have agreed to settle a multimillion-dollar dispute over data, stocks and use of a corporate jet, reports The Oklahoman.

The deal calls for Chesapeake to pay $3.25 million in legal fees and drop claims for $445 million related to data McClendon took from the company when he was fired in April 2013.

In exchange, the McClendon estate agreed to drop claims on remaining compensation from the separation, including cash, stock and use of Chesapeake’s corporate jet,” writes Adam Wilmoth.

Read The Oklahoman article.

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President Trump could soon find himself responsible for appointing a greater share of federal court judges than any first-term president in 40 years, in large part because of a growing number of older judges and a stack of vacancies on the federal courts, according to a report in The New York Times.

Most of the vacant seats are on district courts or appeals courts, explains Josh Katz in the article. Many of those seats have been vacant because of Republican obstruction in blocking votes for former President Obama’s nominees, Democrats charge.

“It’s not just vacancies. The federal bench has many judges who are older than 70,” writes Katz. “Federal judges are appointed for life, but at a certain combination of years served and age, they become eligible to accept ‘senior status,’ a form of semi-retirement.

Read the NYT article.

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A day after a Dallas jury found a neurosurgeon guilty of intentionally crippling an elderly woman he operated on, a string of his former patients and co-workers testified in his sentencing trial, reports The Dallas Morning News.

Christopher Duntsch of Colorado has been in jail since his arrest in July 2015, charged with five aggravated assault charges after four of his patients were maimed and two died between July 2012 and June 2013, reports Claire Ballor.

“His trial focused only on a first-degree felony charge: injury to an elderly person. Mary Efurd was 74 years old in 2012 when Duntsch promised to fix her back pain but instead damaged her spinal cord and amputated part of a nerve,” writes Ballor.

Read the Dallas News article.

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Zapproved has published its new 2017 In-House E-Discovery Data Processing Benchmark Report, detailing the most satisfying and concerning aspects affecting data processing for e-discovery.

These insights can offer a roadmap to create better, more efficient data processing and review approaches in the year ahead, the company said on its website.

Each year, Zapproved produces a report on the the state of in-house e-discovery, based on a short survey. Participants include a range of in-house e-discovery professionals, from IT personnel to legal operations staff. The 2017 In-House E-Discovery Data Processing Benchmark Report reveals participant satisfaction with data processing speed, cost, ease of use, security and risk reduction. These attributes are correlated with business criteria, such as case types, matter sizes, data sources and future trends.

The resulting report illustrates what really impacts data processing decisions today and how to plan for the future.

It covers:

• What most influences speed, cost, ease of use, security and risk reduction
• When to use in-house versus external solutions
• Why spending more in-house can make sense
• Which data sources are the next big trend

Download the study findings.

The Ninth Circuit, in an unpublished opinion, has found that a contract, and therefore an arbitration clause within it, was unenforceable due to fraud in the inception, despite the fact that both parties had ample opportunity to review the contract in its entirety, reports Reinsurance Focus, a publication of Carlton Fields Jorden Burt, P.A.

“This result was required, the court found, because, assuming the allegations of the complaint to be true, the plaintiff did not know that by signing the contract it was agreeing to be a victim of defendants’ scheme,” writes Jason Brost.

The court cited a California Court of Appeals decision for the proposition that it was enough that defendants, as the party drafting the contract, drafted the contract “‘in such a way as to not apprise’ the other party of its intentions.”

Read the article.

Members of an invitation-only organization of top trial lawyers have singled out attorney Mark Lanier as its Trial Lawyer of the Year, while recognizing The Lanier Law Firm among the Top 25 most influential litigation firms in the United States.

Lanier accepted the awards at The National Trial Lawyers’ February 2017 Trial Lawyers Summit in South Beach, Florida. In addition, members elected Lanier to the position of president-elect of The National Trial Lawyers; he will serve as president in 2018.

“Lawyers have an awesome charge in our society today and an obligation to use our courts to provide individuals with a level playing field,” Lanier said. “I’m proud of the justice that our firm has been able to attain for our clients, and I’m honored that our efforts have been recognized by ours peers in this way.”

In a release, the firm said:

The national honors for Lanier individually and the firm as a whole follow a string of large, high-profile jury verdicts on behalf of individuals and business interests. Most recently, the firm secured a second significant jury verdict in multidistrict litigation (MDL) against Johnson & Johnson and its subsidiary DePuy Orthopedics for injuries caused by defective metal-on-metal hip implants. Jurors returned a verdict of more than $1 billion for six patients who were injured by the defective DePuy implant in December 2016. A fourth MDL bellwether trial, which will involve 10 patients, has been scheduled by U.S. District Judge Ed Kinkeade in Dallas for September 2017.

The National Trial Lawyers summit included guest speakers addressing legal and business trends and a keynote address by NFL legend Joe Montana.

For the third consecutive year, federal judges do not feel the typical attorney has the required knowledge to be effectively counseling clients on e-discovery matters, according to Exterro’s Third Annual Judges Survey.

Exterro has compiled a report on the survey, which can be downloaded.

The report covers:

• E-Discovery advice from 22 federal judges on how to improve e-discovery practices
• Expert commentary from retired judges and e-discovery thought leaders, interpreting the results and how they should effect practices
• Judicial insight on the new FRCP rules and the role judges should play under them

Download the report.

President Trump’s pick to replace the late Antonin Scalia on the U.S. Supreme Court is seen by many on the right as a fitting replacement for the iconic jurist that Gorsuch considered a “lion of the law,” reports The Los Angeles Times.

At the same time, Neil Gorsuch also evokes the qualities of Justice Anthony M. Kennedy, for whom Gorsuch worked as a law clerk, writes reporter David G. Savage.

“He may be more conservative than Kennedy when it comes to expanding individual rights, but he seems to lack Scalia’s fervor for overturning liberal precedents from decades past,” Savage writes.

Read the LA Times article.

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A report on the website of Low,  Ball & Lynch discusses a case in which the California Court of Appeal addresses whether attorneys’ fees can be awarded when a plaintiff alleges both tort and contract causes of action and dismisses the entire complaint before trial.

In the case, Neeshat S. Khan v. Michael Shim, “The Court of Appeal concluded that when a plaintiff voluntarily dismisses an action involving both contract and tort claims, Civil Code § 1717(b)(2) does not preclude a defendant from recovering attorneys’ fees if the fee provision is broad enough to cover the tort claims.”

The article concludes that parties need to pay particular attention when drafting fee provisions when contract and tort claims may be brought together. “For cases with a fee provision, a liability analysis regarding the impact of attorneys’ fees should be assessed when determining whether to voluntarily dismiss a case,” in says.

Read the article.

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Narges Kakalia of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo asks and then answers some pointed questions about arbitration in an article on the firm’s ADR Advice website.

“Is an arbitration clause mandatory or permissive when it provides that either party to the contract may elect to submit a dispute to binding arbitration? What if the contract also provides that the right to arbitrate is not exclusive of any other rights that a party has to pursue legal action in an appropriate forum? Such an arbitration clause certainly sounds permissive. But courts have invested a lot of ink addressing the question, and (spoiler alert!) they have more or less consistently come to the conclusion that such a clause makes arbitration mandatory if any party chooses it,” she writes.

She explains that many litigants and their lawyers misinterpret the real meaning fo the word “may” in this context.

Read the article.

In 2016, two federal juries in Dallas delivered significant verdicts on behalf of the victims of serious medical complications caused by defective metal-on-metal hip implants made by Johnson & Johnson and its subsidiary DePuy Orthopaedics Inc., according to a post by the plaintiffs’ legal counsel, The Lanier Law Firm.

Although the court has reduced the amount of punitive damages awarded by the juries in each case, and those judgments are under appeal by The Lanier Law Firm, the two verdicts still total almost $700 million in actual and punitive damages assessed against Johnson & Johnson and DePuy.

In the post, the firm said these verdicts marked the second and third bellwether trials among thousands of similar lawsuits nationwide that have been consolidated in multidistrict litigation (MDL 3:11-md-0244) in the U.S. District Court for the Northern District of Texas. A bellwether trial is one that is typically representative of all the issues involved in the litigation of a mass tort case.

Read the article.

Days before President-elect Donald Trump was to take the oath to uphold the Constitution, he followed through on a more painful obligation: coughing up $25 million to settle litigation over his defunct Trump University real estate seminar program, reports Politico.

Josh Gerstein reports that Trump University — now known as the Trump Entrepreneur Initiative — transferred the funds Tuesday night, according to two sources involved. The settlement provides enough money pay back about half of the funds paid by students for the seminars.

“Last March, Trump vowed not to settle the long-running litigation — two federal class-action fraud lawsuits and a parallel state court action brought by New York Attorney General Eric Schneiderman.” writes Gerstein. “The suits accused Trump U. of deceiving students by falsely claiming that Trump knew the instructors and that the school was an accredited university.”

Read the Politico article.

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The Rules of Evidence protects communication between attorneys and clients from being revealed to the other side during a dispute. It’s a basic concept found in federal and state rules of evidence throughout the country. It often comes into play when an employee or former employee alleges harassment or other wrongdoing, according to a report published by Lynch Service Company.

Harassment accusations are often a surprise. The company needs to figure out what really happened, and time is almost always an issue. It’s understandable that leaders want to start asking questions and investigating the situation.

If this happens in your organization, make sure your team resists the urge to jump into an investigation without an appropriate plan or your company could lose its attorney-client privilege. In many cases, the company accused of wrongdoing is unpleasantly surprised to learn that they will be forced to give the other side access to many of the internal communications the company assumed would be kept private. The human resources team and managers must navigate early investigations carefully and make sure the proper individuals are conducting them.

Read the article.

Veteran trial lawyer Jay Old has joined commercial litigation firm Hicks Thomas LLP where he will continue to represent construction, insurance, petrochemical and health care companies as part of his client portfolio.

Old’s addition will add offices in Austin and Beaumont. Old joined the firm effective Jan. 1.

“We are thrilled to be adding Jay and his team. He’s an exceptional lawyer with an outstanding track record,” said John B. Thomas, name partner and firm co-founder. “Many of us have known Jay for years, dating back to our days together at Andrews Kurth.”

Old’s clients include refineries, construction contractors, manufacturers, hospital systems and insurers. Joining him is labor and employment lawyer Jim Henges, along with four other lawyers from Old’s firm.

“I like to say I represent the job creators,” Old said. “I’m very excited to be joining the Hicks Thomas team, and hope to add to its reputation as a premier trial firm.”

Old is a frequent speaker at continuing education programs for lawyers across the country. He also is a former president of the Texas Association of Defense Counsel and has chaired the Construction Law Section of the State Bar of Texas.

He has defended national clients in statewide and regional mass tort litigation, in toxic torts, construction and product liability cases. He also successfully defended insurance companies in a series of high-profile trials involving hailstorm claims in Galveston and elsewhere.

Old is Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization and has been recognized on the Texas Super Lawyers list every year since 2005. A native of Beaumont, he is a graduate of Texas A&M University and the Texas Tech University School of Law.

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A New York Supreme Court judge on Tuesday agreed to dismiss a defamation suit brought by political strategist  Cheryl Jacobus against Donald Trump, reports The Hollywood Reporter.

The suit was based on a Trump tweet, in which he said that Jacobus had “begged” him for a job and went “hostile” when she was turned down. He also called her a “major loser” with “zero credibility.”

New York judge Barbara Jaffe granted Trump’s motion to dismiss.

She found that a reasonable reader would recognize Trump’s schoolyard type squabble as rendering statements of opinion, writes Eriq Gardner.

Read the Hollywood Reporter article.

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