The International Association of Defense Counsel (IADC) has announced publication of the spring 2017 edition of its Defense Counsel Journal (DCJ), which is available for free and without a subscription to IADC members and non-members via the IADC’s website, www.iadclaw.org.

The spring 2017 edition is available at www.iadclaw.org/publications-news/defense-counsel-training-manual/.

Published in its first edition in 1934 as the Insurance Counsel Journal, the DCJ is a forum for topical and scholarly writings on the law, including its development and reform, as well as on the practice of law in general. The DCJ is published quarterly and is frequently and favorably cited by courts and other legal scholarship.

“This year, for the first time, we are making the IADC’s acclaimed Defense Counsel Journal free and accessible to anyone via our website to meet demand for the publication and to more easily share our members’ insights on timely legal practice issues with the broader legal community,” said John T. Lay, Jr., IADC President and a shareholder at Gallivan, White & Boyd, P.A.

A 2,500-member, invitation-only organization, the IADC serves its members and their clients, as well as the civil justice system and the legal profession. The organization maintains a leadership role in many areas of legal reform and professional development, the association said in a news release.

“We are very excited about the new distribution model for our Defense Counsel Journal,” said Michael Franklin Smith, IADC member and current editor of the DCJ, as well as a shareholder at McAfee & Taft. “The new spring issue offers scholarly, in-depth review and analysis for engaging attorneys and enhancing their understanding of current legal trends and timely issues that they may face in diverse practice areas.”

The spring issue of the DCJ includes analysis of the following topics:

– Why the majority of jurisdictions in the United States have rejected the product line theory of liability, along with a 50-state review of the case law addressing the theory;

– The rapidly evolving defense of lack of personal jurisdiction since the U.S. Supreme Court’s 2014 opinion in Daimler AG v. Bauman;

– Case law discussing insurance coverage for malicious prosecution under comprehensive general liability policies and the policy exclusions that can affect that coverage; and
The development and evolution of judicial notice, a tool that can greatly increase the efficiency of certain kinds of proof if used properly.

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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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Zapproved has published a guide that discusses five ways to save costs and build efficiencies by bringing e-discovery processing and review in-house. The guide can be downloaded at no charge.

On its website, the company says keeping in-house e-discovery costs in check is a constant balancing act. Complex litigation and regulatory matters — along with pressure to streamline operational spending — create an often expensive e-discovery reality.

According to a study from FTI Consulting, the majority of Fortune 1000 corporations now spend $5-10 million annually on e-discovery with 70% of the costs tied directly to document review.

The guide shows how to take charge of e-discovery by leveraging easy-to-use and secure in-house tools that minimize business risk — and maximize budgets.

• Unlock detailed tips in this guide from Zapproved to get started. It outlines six ways to slash spending and boost efficiencies. Find out how to:
• Use modern, cloud-based e-discovery software tools to bring routine e-discovery processes in-house.
• Modernize legacy systems to limit dependence on IT.
• Empower legal teams to slash expenses, improve data security and speed time to resolution.

The guide also offers step-by-step recommendations and best practices to help:

• Get insights faster by plugging in data processing tools
• Save money by reviewing routine, high-velocity matters in-house
• Improve response to internal investigations and FOIA information requests

Download the guide.

A Supreme Court decision could make it harder for large groups of plaintiffs to sue corporations in state courts for damages caused by manufacturers’ products, reports Politico.

The court sided with Bristol-Myers Squibb to limit where patients can seek compensation for harm caused by drugs.

“But the ruling will echo beyond the pharmaceutical industry to potentially affect any liability case in which consumers allege harm caused by a deficient product, including automobiles, tobacco, food and other mass litigation like consumer claims of financial fraud by a company,” writes Sarah Karlin-Smith. “It could also affect lawsuits against companies being accused of environmental wrongdoing.”

Karlin-Smith quotes a blog post by James Beck, who works with pharmaceutical and product liability law at Reed Smith: “This is one of the most important mass tort/product liability decisions.”

“It will extremely limit the notion that large companies can be sued by anyone, anywhere,” he explained.

Read the Politico article.

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News on MI Federal ruling that prevents Mackinac Island to impose the ferry fares.

Bloomberg Law profiles lawyer Dan Brockett, who ditched a job representing the world’s biggest banks for $1,000 an hour, and started earning his keep by suing the very companies that used to pay his bills — working on a contingency.

“On a recent weekday at his firm, Quinn, Emanuel Urquart & Sullivan LLP, Brockett said he couldn’t be happier that he made the switch to what he calls ‘success-based’ billing,” writes reporter Matt Robinson. “The 61- year-old senior litigation partner, wearing jeans and a sweater, pointed to a framed photo of a $250 million legal fee award that hung like a trophy over the desk of his office on Manhattan’s Madison Avenue.”

The profile shows how Brockett worked with the Commodity Futures Trading Commission, developing a network of sources across Wall Street who send disgruntled bankers his way. If the cases are successful, some of those whistleblowers can see pay days of as much as $30 million.

Read the Bloomberg article.

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Texas lawyer Kent Sullivan, who helped build a potent state health care fraud unit as the No. 2 lawyer in the Texas Attorney General’s office, is convinced that more states will follow Mississippi and Ohio in suing to recover damages related to the opioid epidemic, reports a post on the website of Androvett Legal Media & Marketing. Sullivan, now a partner in the Austin office of Jackson Walker LLP, says states wield “a huge hammer” over defendants through their tough anti-fraud laws.

“I expect a national trend, a significant wave of lawsuits against the companies and organizations connected with the spread of these powerful prescription drugs. States will be very tempted by the significant potential damages that may be awarded in court to try to recoup some of the costs of treatment.

“There is, of course, a way to successfully defend these cases, but at the beginning, state governments have a huge advantage under Medicaid fraud and consumer protection statutes. There is an easier burden of proof and enhanced damages available under these laws. Intent or negligence often is not required to prove liability. You have a huge hammer over these companies’ heads, and they can be at risk of losing more than actual damages. The damages are often multiplied if you’re found liable, and the states can often recover attorneys’ fees.

“As government health care has expanded, so have anti-fraud actions by states. These lawsuits are not part of the traditional private party litigation framework, where the burden of proof is higher. In many cases, the defendants consider settlement to avoid the significant risk and high cost of litigation. It is fairly unusual for these cases to go to trial but, as I often tell clients, the way to obtain the best settlement is to be totally ready for trial.”

Sullivan, a former appeals court judge, was chief deputy AG to then-Attorney General Greg Abbott and ramped up the state’s Civil Medicaid Fraud Division from four lawyers to over 40. In 2012, Texas won a $158 million settlement from Johnson & Johnson over its improper marketing of the anti-psychotic drug Risperdal to patients on Medicaid from 1994-2008. It was the largest Medicaid settlement in Texas history and is believed to be the first settlement paid at that time to any state in the nationwide litigation over Risperdal.

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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.

In a new effort to compete with Amazon’s delivery system, Walmart says it plans to have store employees on their way home from work deliver online orders to customers. While it may make business sense, it also raises a host of legal questions, says Justin Markel, a Houston labor and employment lawyer with Roberts Markel Weinberg Butler Hailey PC.

Markel’s comments on the matter were posted on the website of Androvett Legal Media & Marketing:

First is determining how much to pay the employees for this extra work. The deliveries will be considered non-exempt under the Fair Labor Standards Act, so the employees will be entitled to overtime if this extra drive time puts them over 40 hours in a workweek. But how can Walmart be sure as to how long the deliveries actually take? If employees are required to electronically check in when deliveries are made, that may create an incentive to take the scenic route to the customer’s home. If, on the other hand, Walmart requires them to have GPS trackers, state law privacy concerns might arise. What about the extra gas and maintenance costs? Walmart should consider paying employees extra to ensure that these out-of-pocket expenses don’t cause them to fall below minimum wage.

Then there are public safety issues. Walmart should look into the employees’ driving histories before asking them to make deliveries. According to news reports, Walmart will conduct background checks. That should be a comprehensive review. Criminal histories that might have been less relevant for certain non-interpersonal store jobs might be more relevant if an employee is sent to customers’ homes.

Even with safe drivers on the road, accidents will be all but inevitable. If an employee is in an accident on the way to a customer’s house, the employee will likely be considered acting in the scope of employment. That will likely lead to vicarious liability on Walmart’s part. To protect against risk of claims from injured victims, it would be advisable for Walmart to discuss its non-owned auto insurance coverages with its insurance brokers.

As Walmart tests this program, it will have to carefully navigate many legal issues. Time will tell whether the cost savings and efficiencies will outweigh the legal risks.

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Fitch, Even, Tabin & Flannery LLP will present a free webinar, “The Difficulties of Being Obvious: Practical Advice for Overcoming Obviousness Rejections,” featuring Fitch Even partner Stephen Favakeh and Fitch Even patent agent, Thomas James.

The webinar will take place on Thursday, June 22, 2017, at 9:00 am PDT / 10:00 am MDT / 11:00 am CDT / 12:00 noon EDT.

CLE credit has been approved for California, Illinois, and Nebraska. Other states may also award CLE credit upon attendee request. There is no fee to attend, but registration is required.

Following the live event, a recording of the webinar will be available to view for one year at www.fitcheven.com.

Register at https://register.gotowebinar.com/register/2784708194098019841

In the predictable arts, an obviousness rejection is typically based on a combination of multiple references, the firm says on its website. Attempting to overcome such a rejection can be a perplexing and frustrating experience. This is particularly true when the patent examiner is combining references to arrive at the claimed invention in what can be a highly subjective manner. Nevertheless, when it comes time to respond, there will usually be more than one way to get the job done.

The webinar will address best practices for responding to obviousness rejections, covering these topics and more:
• How to take the prevailing and latest Federal Circuit case law into account in your responses
• Making effective claim amendments specifically tailored to overcome the obviousness rejection
• Developing persuasive arguments in support of patentability over a combination of references

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A small trading exchange on Thursday filed an antitrust lawsuit accusing Bank of America Corp., Citigroup Inc., JPMorgan Chase & Co. and nine other banks of conspiring to shut it out of the $9.9 trillion credit default swap market, reports Reuters.

The plaintiff, Tera Group, alleges the banks organized a boycott of its seven-year-old TeraExchange platform by refusing both to send it any CDS transactions, and to clear and settle any CDS trades that customers wanted to handle there, according to reporter Jonathan Stempel. The complaint said the banks used their 95 percent market share to require that trading follow a protocol known as “request for quote,” which Tera described as opaque and inefficient.

“Tera said this enabled banks to boost profit by keeping traders in the dark about prices, defeating a goal of the 2010 Dodd-Frank financial reforms, while instilling a “great fear of retaliation” against traders who defected to rival platforms,” Stempel writes.

Read the Reuters article.

Zapproved has published a free guide called “Get In-House Processing and Review Howtos” that can be downloaded from the company’s website.

The guide’s subtitle is “5 Ways to Slash Spending with Cloud E-Discovery,”

“Keeping in-house e-discovery costs in check is a constant balancing act,” the company says on its website. “Complex litigation and regulatory matters — along with pressure to streamline operational spending — create an often expensive e-discovery reality.”

The guide discusses:

• Use modern, cloud-based e-discovery software tools to bring routine e-discovery processes in-house.
• Modernize legacy systems to limit dependence on IT.
• Empower legal teams to slash expenses, improve data security and speed time to resolution.

• Get insights faster by plugging in data processing tools
• Save money by reviewing routine, high-velocity matters in-house
• Improve response to internal investigations and FOIA information requests

Download the guide.

Bloomberg Law offers a backgrounder on Walt Disney Co.’s ABC News upcoming trial in South Dakota, where the network faces as much as $5.7 billion in potential damages over allegations that it made false and misleading statements about the food additive “pink slime” in a 2012 series of reports.

South Dakota’s Beef Products Inc. claimed the coverage caused sales to plummet, costing the company $1.9 billion and forcing layoffs.

The question-and-answer article covers such issues as What’s pink slime? What is the lawsuit about? What does this do to the industry? and What does this mean for Disney and ABC?

Read the Bloomberg article.

A podcast on Kane Russell Coleman & Logan’s Energy Law Today discusses the Eighth Circuit’s recent ruling that makes it easier for plaintiffs to take fracking contamination claims to trial.

The podcast also covers the Texas Supreme Court’s ruling on the validity of county-wide mineral conveyances, and the Oklahoma Supreme Court’s consideration for clarification of the often vexing “marketable product” rule for post-production expense deductions.

Oil-and-gas trial lawyer Tom Ciarlone of Kane Russell presents the podcast.

Listen to the podcast.

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The U.S. Supreme Court has handed a victory to consumer groups in a case about printer cartridges — or more specifically, toner cartridges, the kind used by laserjet printers. The case has huge implications for the way we think about technology ownership in America, and your rights as a user, according to The Washington Post.

As IPWatchdog explaines it: The court ruled “that when a patent owner sells a product the sale exhausted patent rights in the item being sold regardless of any restrictions the patentee attempts to impose on the location of the sale. In other words, a sale of a patented product exhausts all rights — both domestic and international.”

The Post‘s Brian Fung explores how the ruling can affect commerce:

The practical question is how much Lexmark or any other company can control what you do with the things you buy. This debate isn’t limited to printer cartridges. If you buy a car, how do you know you really own it? What does ownership actually entitle you to do with your property, anyway?

Read the Washington Post article.

Reuters is reporting CVS Health Corp’s Omnicare unit has agreed to pay $23 million to resolve a whistleblower lawsuit alleging that it took kickbacks from a drugmaker to promote two antidepressants, according to settlement papers.

The agreement comes out of a 2007 lawsuit against the pharmacy operator by two former employees of drugmaker Organon USA Inc on behalf of the federal government and various states.

“The lawsuit claimed that from 1999 to 2005, Omnicare and certain pharmacies it acquired sought and received kickbacks from Organon in the form of discounts in exchange for promoting the antidepressants Remeron and Remeron SolTabs,” writes Nate Raymond.

Former Organon employees Richard Templin and James Banigan filed the suit, which reached a related $31 million settlement in 2014.

Read the Reuters article.

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LexisNexis Legal & Professional has announced the launch of The Wagstaffe Group Practice Guide: Federal Civil Procedure Before Trial in multiple formats, all of which are designed to guide attorneys through the intricacies of pre-trial civil litigation.

Written by James M. Wagstaffe, former co-author of The Rutter Group’s Federal Civil Procedure Before Trial, this new guide is available exclusively from LexisNexis via Lexis Advance, as a three-volume print edition and as an eBook, both individually and as part of the LexisNexis Digital Library.

In a news release, the company said this multimedia guide also brings a first for the legal research industry—attorneys can now navigate the complexities of pre-trial civil procedure via a series of 150+ videos embedded directly within the content on Lexis Advance. These 2-5 minute videos are included throughout the guide and feature explanatory tips and practical insights from Wagstaffe that enhance and complement the surrounding text in each chapter.

The release continues:

“We are delighted to announce the launch of this cutting-edge practice guide in partnership with Jim and his team at the Wagstaffe Group,” said Sean Fitzpatrick, Managing Director of North American Research Solutions at LexisNexis. “With its release and the addition of embedded video content directly within the legal research tools our customers use most, we’re bringing practical guidance to life. Not only are we providing the smartest and most relevant content to the market, but we are doing so in a manner that addresses the changing needs of our customers.”

In addition to the new explanatory videos, The Wagstaffe Group Practice Guide: Federal Civil Procedure Before Trial breaks down the complex world of pre-trial civil litigation by providing in-depth, expert analysis and authority; numerous examples illustrating both common and nuanced procedural issues; pertinent circuit-specific coverage; step-by-step checklists for successful federal pre-trial practice. Subscription to the practice guide will also include a current awareness feature with commentary and practical insights on new cases, amendments to laws and more.

“Federal Litigation can be complex, confusing and intimidating,” said Jim Wagstaffe. “In my roles as a lawyer, teacher and author, I have heard time and again from attorneys about the need for simple-to-digest, accessible content. I consider it an honor to partner with LexisNexis to bring this vision to life.”

Wagstaffe is a renowned expert on pre-trial federal civil procedure, as well as the partner and co-founder of California-based Kerr & Wagstaffe LLP. For the past 30 years, he has served as a law professor, prolific author and lecturer, including working with the Federal Judicial Center to teach all incoming federal judges and provide annual update seminars to all circuits across the country on the intricacies of federal jurisdiction and federal practice. Considered one of the country’s preeminent First Amendment and defamation lawyers, Wagstaffe heads up his firm’s successful Federal Practice Group and leads litigation across a diversity of matters. In 2014, Wagstaffe was appointed as member and Chair of the Federal Judicial Center Foundation Board by the Chief Justice of the United States Supreme Court.

Learn more about the guide.

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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.

Gray Reed & McGraw’s Energy & the Law Blog discusses Perdenal Energy LLC v. Bruington Engineering, Ltd., which asked whether a court must dismiss an engineering defect lawsuit filed without a certificate of merit with prejudice or may dismiss without prejudice.

“Texas law requires a plaintiff to file a ‘certificate of merit’ with its original petition for claims arising out of work by licensed or registered engineers,” explain authors Charles Sartain and Chance Decker. “The certificate must be from a qualified engineer and must detail the manner in which the professional services were faulty.”

They outline approaches for handling this situation, both from the standpoint of the defendant and the plaintiff.

Read the article.