Reed Smith LLP will present a webinar offering a look back on celebrity data discovery law in 2017 and how it affects you and your organization.

The one-hour complimentary event will be Thursday, Dec. 14, 2017, at 2 p.m. Eastern time.

Presenters will be U.S. Chief District Judge Joy Flowers Conti (W.D. Pa.), e-discovery authority and Reed Smith partner David Cohen, noted entertainment lawyer Michael Kump of Kinsella Weitzman Iser Kump & Aldisert, and join Relativity’s David Horrigan.

Objectives are:

• What you should—and should not—do if you or your client suddenly become a news or social media celebrity
• Understanding your legal obligations to preserve evidence for litigation
• Knowing the potential pitfalls with data sources, including audio files and text messages
• Learning ways to protect and avoid waiving the attorney-client privilege

Register for the webinar.

Courts will generally enforce a non-compete agreement negotiated as part of a business sale as long as it is reasonable in geographic scope and duration, writes Michael P. Connolly in the Murtha Cullina Family Business Perspectives blog.

“What is reasonable will depend on factors such as the type of business being purchased, the pre-sale geographic reach of the business, and the consideration paid for the restriction on the seller’s future competition,” he explains. “Parties to a non-compete should therefore carefully consider these factors when drafting the agreement. The parties also should carefully define what type of ‘competitive’ conduct will be restricted.”

Connolly discusses the case of E.T. Products, LLC v. D.E. Miller Holdings, Inc., in which the United States Court of Appeals for the Seventh Circuit recently addressed the enforceability of non-compete agreements that had been negotiated in connection with a sale of a business.

Read the article.

Reporting on the filing of a RICO suit against the “Weinstein Sexual Enterprise” has brought up names of some Biglaw firms, but they’re not named in the complaint.

The suit alleges that Harvey Weinstein, the Weinstein Co., the company’s board members, Miramax Film Corp., and others violated the Racketeer Influenced and Corrupt Organizations Act and helped “facilitate and conceal” a pattern of sexual assault and harassment.

“Boies Schiller & Flexner has already a lost client over the debacle, and they now appear to be implicated by this RICO lawsuit,” reports Kathryn Rubino for Above the Law, adding that other firms mentioned in reports include K&L Gates, U.K.-based BCL Burton Copeland, and Israel-based Gross, Kleinhendler, Hodak, Halevy, Greenberg & Co.

K&L Gates denied the implications: “The claims relating to K&L Gates are false. K&L Gates has never represented Mr. Weinstein or any other person or entity concerning investigations or inquiries relating to Mr. Weinstein,” the firm said in a statement.

Read the Above the Law article.

Trial lawyer Mark Werbner of Dallas litigation firm Sayles Werbner will address Texas lawyers about his decade-long quest to hold the Arab Bank responsible for providing financial support to U.S.-designated terror organizations.

Werbner will discuss Linde, et al. v. Arab Bank PLC in a presentation titled, “Fighting Terror-Financing in the Courtroom,” during the State Bar of Texas Litigation Update Institute’s 34th annual course in January 2018.

In 2014, a jury in New York sided with Werbner, finding Jordan-based Arab Bank responsible for providing financial services to Hamas for 24 terror attacks during the “Second Intifada” in Israel and the Palestinian territories. The verdict was the culmination of a lawsuit filed in 2004 to obtain justice for nearly 300 American victims and their families. The case marked the first liability verdict against a foreign bank for violating the Anti-Terrorism Act.

Currently under review by the U.S. Supreme Court is Jesner, et al., v. Arab Bank, a related case that would clarify if the Alien Tort Statute (ATS) applies to corporations under the 1789 U.S. law.

The Linde verdict earned Werbner the 2016 Trial Lawyer of the Year Award from Public Justice, which honors attorneys who made the greatest contribution to the public interest through their work in precedent-setting, socially significant cases. His work has also been consistently recognized in top legal publications, such as The Best Lawyers in America.

Johnson & Johnson and Bayer AG are responsible for a woman’s injuries tied to the blood-thinning drug Xarelto and must pay almost $28 million in damages, jurors concluded in the companies’ first loss at a trial over the medicine.

Bloomberg Technology reports that the plaintiff said she took Xarelto, sold by J&J’s Janssen Pharmaceuticals unit, for more than a year before being hospitalized in 2014 with gastrointestinal bleeding she blamed on the drug.

The jury in Philadelphia on Tuesday ordered J&J and Bayer, which jointly developed the product, to pay $1.8 million in actual damages and $26 million in punitive damages.

“The companies still face more than 21,000 patent suits over Xarelto, which has been linked to at least 370 deaths, according to U.S. Food and Drug Administration reports. Patients have said that Xarelto can cause uncontrollable bleeding and that Bayer and J&J failed to provide an antidote. Some also claim the companies failed to properly warn about the drug’s risks,” according to Bloomberg’s Jef Feeley and Margaret Cronin Fisk.

Read the Bloomberg article.

A juvenile and domestic relations judge in southwest Virginia was removed from the bench by the Virginia Supreme Court after he admitted contacting two key witnesses in a pending federal corruption case against his wife, according to The Washington Post.

“Pomrenke also has been found guilty of contempt of court by a federal judge in Bristol in connection with his wife’s case and on Thursday was sentenced to two months in prison and ordered to pay the maximum allowable fine of $1,000,” writes the Post‘s Tom Jackman.

His wife, Stacey Pomrenkeis serving a 34-month prison sentence on multiple charges of conspiracy, extortion and wire fraud from her time as chief financial officer of Bristol Virginia Utilities.

Read the Post’s article.

U.S. President Donald Trump’s lawyers told a New York state judge on Tuesday that under the U.S. Constitution she had no jurisdiction over the president and therefore urged her to dismiss a defamation lawsuit by a woman who has accused Trump of sexual harassment, reports Reuters.

Summer Zervos, a former contestant on Trump’s reality show “The Apprentice,” contends that Trump’s denials of her accusations amounted to false and defamatory statements, according to reporter Jonathan Allen. She said she and her business have suffered harm because Trump branded her a liar.

Trump lawyer Marc Kasowitz told the judge that “a state court may not exercise jurisdiction over the president of the United States while he or she is in office.”

But the lead lawyer for Zervos pointed out that there is no case holding that a federal official can’t be held to account in state court.

Read the Reuters article.

For the sixth year in a row, the commercial litigation and intellectual property firm Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C., or AZA, is being recognized among the nation’s Best Law Firms by U.S. News & World Report and The Best Lawyers in America.

“Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing is our go-to firm for any high-stakes litigation. They are smart, tough and effective,” one C-Suite client executive told the publications’ researchers.

Houston’s AZA is listed in the 2018 top tier of area metropolitan law firms for commercial litigation. The selection of Best Law Firms is based on a rigorous process that includes client and lawyer evaluations and peer review from other attorneys in the same practice areas.

Read details of the award.

Delegating a $12 million arbitration to accountants rather than lawyers in Apache v. YPF SA was the right call, writes Charles Sartain in the Gray Reed Energy & the Law blog. The problem was in the procedures and protections for a party believing the accountants got it wrong.

Sartain provides background: “Apache sold its entire business in Argentina to YPF for $700 million. The Sale and Purchase Agreement allowed for adjustments to the consideration based on a variety of factors. The parties traded accounting statements, and a dispute arose over a ‘Lock Box Working Capital’ amount and ‘Leakage.’ YPF contended that Apache owed $12 million.”

The parties submitted the dispute to KPMG, which found that Apache owned $98. million. Apache challenged the finding.

Read the article.

Image by Grendelkhan

Explosive evidence alleging that a covert Uber unit stole trade secrets and hid internal communications emerged in federal court on Tuesday in the bitter intellectual-property dispute between Waymo and Uber, reports the San Francisco Chronicle.

Reporter Carolyn Said writes that a visibly angry U.S. District Judge William Alsup postponed the high-profile case’s trial, which had been set for next week, saying Waymo needs time to review the new evidence.

“We’re going to have to put the trial off,” Alsup said. “If even half of what’s in that letter is true, it would be a huge injustice to force Waymo to go to trial and not be able to prove the things said in that letter.”

He was referring to a letter from lawyers for Uber’s former manager of global intelligence. The U.S. Attorney’s office had provided the letter to the judge.

Read the Chronicle article.

The scorched earth legal battle over the Cellino & Barnes law firm has escalated, with one of the partners threatening to “burn the place to the ground,” according to court papers.

The New York Daily News reports that Stephen Barnes argued that his estranged partner Ross Cellino’s effort to dissolve the firm spells “financial suicide” for both of them, according to documents filed last week in a Buffalo court.

“The move, Barnes says in papers, would kill one of the most successful personal injury firms in the country,” writes reporter Stephen Rex Brown. “The Buffalo-based firm will earn Cellino and Barnes $12 million each in 2017 alone, papers say.”

Read the NY Daily News article.

It’s far too simplistic to suggest that anything your company considers to be a “settlement negotiation” is going to be kept out of court, warns Joseph A. Schouten of Ward and Smith, P.A.

In an article on the firm’s website, he writes: “It’s important to understand the limits of the protections afforded to ‘settlement negotiations.’ Otherwise, your company may make a statement in what it believes to be a confidential ‘settlement negotiation’ only to have that statement used against it in court.”

In the article, he explores some of the common situations in which a company may fall into a trap if it doesn’t understand the rules regarding protections for settlement negotiations or communications.

Read the article.

The U.S. Court of Federal Claims has appointed two attorneys from the firm of Burns Charest LLP to lead proposed class-action claims arising from flooding in Houston that resulted from Hurricane Harvey.

Trial lawyers Daniel Charest and Larry Vincent of Burns Charest were appointed co-lead counsel, along with Charles Irvine of Irvine & Conner PLLC, to manage discovery and dispositive motions. Vincent was also appointed co-lead counsel for jurisdictional discovery and motions to dismiss.

The plaintiffs in the case are Houston homeowners whose properties were ravaged by floodwater releases from the Addicks and Barker reservoirs, which were designed for flood control.

During the massive rains that resulted from Hurricane Harvey, the Army Corps of Engineers performed controlled releases of floodwater from the reservoirs out of concern the dams would break. But the retention of flood water and subsequent releases inundated many neighborhoods, leading to hundreds of millions of dollars in damage both upstream and downstream of the reservoirs. The homeowners claim that by intentionally flooding the area, the government took their land without providing compensation in violation of the Fifth Amendment to the U.S. Constitution.

“Our clients suffered enormous damages as a result of the government’s design of the reservoirs and actions during Hurricane Harvey,” said Charest. “We are committed to helping the people of Houston receive just compensation.”

Burns Charest represents homeowners whose properties are in the flood zone upstream of the reservoirs. There are currently hundreds of upstream lawsuits pending before the U.S. Court of Federal Claims, but the attorneys estimate that number could eventually grow to more than 15,000. The court has laid out an aggressive schedule, with dispositive motions due by June 15, 2018.

“We are very pleased that the court recognizes the urgency in resolving these claims and the need to help residents who are desperate to move forward with plans to recover, rebuild or relocate,” said Charest.

Burns Charest has brought claims throughout the United States, and is currently leading the national class action litigation against EpiPen manufacturer Mylan, and against 3M Co., based on claims of defective dental crowns.

The Houston case is In re Addicks and Barker (Texas) Flood-Control Reservoirs, Master Docket No. 17-3000L, U.S. Court of Federal Claims.

Virtual data rooms have led to a paradigm shift in how communication between parties is done, according to Firmex, which provides a cloud-based solution for sharing large volumes of confidential documents. This online repository of information has been efficiently used by various enterprises and individuals to store their data and later to distribute it. Various providers have come up with their virtual data rooms which people can use to access multiple services.

One area where virtual data rooms are increasingly becoming popular is in litigation. Lawyers are taking advantage of this technology to be able to communicate not only with their clients but also counsel they work together with, experts and counsel on the opposing side. It has promoted due diligence.

Firmex provides the following information:

How is Virtual Data Rooms used in litigationBefore the invention of the virtual data room, litigators would use the conventional physical data room. However, the many shortcomings and technological advancement led to the invention of the virtual data rooms which are more efficient.

On a frequent basis, lawyers are involved in exchanging and sharing a lot of documents as that is the most used basis of communication. Therefore, it is unsurprising that there are many ways litigators use the virtual data rooms. Some of them include;

1. Communication in a class action lawsuit.
These types of lawsuits differ from the traditional suit in that in this kind; a plaintiff brings a matter before a court on behalf of a group or class of people who are absent from the court proceedings. You can only imagine the amount of documentation present in this type of case. It is a lot. However, with virtual data rooms storage and sharing of this documents has been made easy.

With this tool, people can be able to set up profiles which they can save their information or exchange information with everyone within that group. This way, instantaneous communication between the plaintiffs and counsels is achieved.

2. Sharing of documents following a subpoena request
When the opposing party acquires a subpoena for documents from the court, this might mean the counsels have to go searching for the documents. Also once they find them, they have to put them in order so that they are as per the subpoena.

When a firm uses virtual data room, the process will become relatively faster. Virtual data room tools will allow one to store documents. They can then be easily be retrieved or accessed when need be. Also, given that the subpoenas will be uploaded this tool, litigators can therefore easily copy and paste the required documents onto the subpoena.

3. Easy organization and derivability of documents
As much as having a proper filing system is good, it might not be easy to find use and share documents. For instance, if you want to analyze documented evidence with co-counsels or witnesses, it is easier when you have a virtual data roaming system. You can quickly go through all the documents without having to leave a mess.

What are some of the benefits of using virtual data room?

As already stated, it provides a more organized system through which attorneys can share and store documents with other people he is working with. Other than that, other benefits include;

• It is cost efficient
With virtual data rooms, there is less of everything which was inconveniencing. There will be fewer people working on documents and sharing also will not be a long process. This saves the firm a lot of money.

• Security
Virtual data rooms provide a safe digital tool to share information. Given there is the lawyer-client confidentiality, it is paramount to make sure that a client’s information does not get to unauthorized people. Systems such as emails can easily be hacked thus not the best way to share information. However, virtual data rooms have made security a top priority. They have measures such as multi-factor authentication and allowing users to be able to restrict the people who can access specific files.

• Convenience
Who said a counsel has to be at the office for them to be able to go through documents as they prepare their case? Virtual data rooms allow you to access information on the go regardless of where you are. The same convenience is seen in the ease to share information with colleagues.

To conclude, virtual data rooms have entirely changed how information is handled in litigation. It has resulted in a lot of ease and convenience. Choosing which virtual data room to go by might be hard. However, you should consider factors such as how good their security is, the different tools that come with and the costs involved. That will help you make the right decisions.

Judge Brett Kavanaugh

President Trump has added five names to his list of potential Supreme Court justices in a move that precedes the possible, but still unannounced, retirement of Associate Justice Anthony Kennedy, reports USA Today.

Reporters Richard Wolf and Gregory Korte write that the biggest new name was that of Brett Kavanaugh, a judge on the powerful U.S. Court of Appeals for the District of Columbia Circuit.

“Like Justice Neil Gorsuch of Colorado, who was confirmed to the high court in April, Kavanaugh is a conservative who once clerked for the more moderate Kennedy,” they write. “When Trump selected Gorsuch for the late Justice Antonin Scalia’s empty seat, it was viewed as a move that might entice Kennedy, 81, to step down.”

Read the USA Today article.

A recent federal court denied an employer’s motion to compel arbitration, finding that it waived its right to arbitration by engaging in litigation.

George L. Kanabe, a partner in the San Francisco office of Orrick, Herrington & Sutcliffe LLP, discusses three key lessons the ruling provides for plaintiff-employers.

Kanabe reports that the ruling noted, “[t]here is no other reasonable interpretation of plaintiff’s untimely demand for arbitration than as a deliberate tactic to test the judicial waters but then, when those waters did not flow the direction plaintiff intended, to change routes in hopes of finding a different current.”

Read the article.

Steve Mostyn, a top Democratic donor and prominent Houston trial lawyer who made his fortune suing insurance companies on behalf of homeowners after hurricanes, has died at 46.

Amber Mostyn, his wife, released a statement saying her husband died after “a sudden onset and battle with a mental health issue.” She did not disclose the cause of death,” reports The Texas Tribune.

KTRK, the Houston ABC television affiliate, reports that Mostyn died at his home Wednesday night, and, according to authorities, he took his own life.

Tribune reporters Morgan Smith and Jay Root write that Mostyn and his wife, also an attorney, have long been considered the state’s most powerful Democratic backers, spending millions on Democratic campaigns in Texas and beyond.

Read the Texas Tribune article.

Now even a pro bono client feels compelled to fire David Boies after revelations of the famed litigator’s role in attempting to hide Harvey Weinstein’s alleged history of sexual harassment and assault.

The Tampa Bay Times reports that the City of St. Petersburg, Florida, is heading toward ending its relationship with Boies.

Charlie Frago writes that Boies and his firm Boies Schiller Flexner had offered their services to the city in a challenge to Citizens United v. Federal Elections Commission, the 2010 U.S. Supreme Court ruling that removed restrictions on how much outside groups can spend on elections.

One city council member reacted to the revelations of Boies’ actions: “I find this reprehensible and will absolutely NOT vote to accept Boies’ offer to represent the city of St. Petersburg pro bono on the campaign finance issue.”

Read the Tampa Bay Times article.

The New York Times lays out the plan the Trump team devised to fill the federal appeals courts with young and deeply conservative judges — a strategy that has started to show results.

Reporter Charlie Savage describes the plan: “Start by filling vacancies on appeals courts with multiple openings and where Democratic senators up for re-election next year in states won by Mr. Trump — like Indiana, Michigan and Pennsylvania — could be pressured not to block his nominees. And to speed them through confirmation, avoid clogging the Senate with too many nominees for the district courts, where legal philosophy is less crucial.”

He predicts that the consequence of the transformation of the judiciary will yield an appellate court system as ideologically split as Congress is today, after the Democrats regain power and use the same playbook.

Read the NYT article.

Zapproved has published “Building Your Preservation Responsive Playbook,” illustrating ways to adopt, monitor and document a preservation process that is litigation-ready.

The guide can be downloaded at no charge.

Providing insights in the publication are:

• Cortney Starble, E-Discovery Specialist at CBRE, Inc.
• Leslie Kendrick, Litigation Counsel at Daimler
• Bryan Dearinger, Associate General Counsel at University of Oregon

The guide is intended to provide practical tips aimed at helping legal operations teams preserve relevant data, release legal holds and manage clear preservation workflows.

Download the guide.