Friday, May 29, 2020
INSIGHT: Covid-19 Pandemic Highlights the Need for Privacy Legislation
“The Covid-19 pandemic and the use of big data to track, understand, research, and identify impacted areas highlight why a federal privacy law is essential. . . . It must hold companies accountable for decisions they make about the processing of big data for research.”
Worker Safety, Privacy Clash as Temperature Checks Become Norm
“Employers are poised to collect health data from their workforces daily as they adopt temperature checks and other screening protocols to fight the coronavirus, triggering concerns about workers’ privacy and whether the practices will continue beyond the pandemic.”
FCC commissioner says Trump’s Section 230 plan ‘does not work’
“There’s a growing divide at the Federal Communications Commission over a proposed executive order by the Trump administration to regulate speech on social media platforms.
In statements made Thursday, Commissioners Jessica Rosenworcel and Brendan Carr took opposing sides over an executive order targeting Section 230 of the Communications Decency Act. Democrat Rosenworcel said that the order “is not the answer” while Republican Carr suggested that the proposal “makes sense.” If the current draft order is signed, the FCC would be at the helm of adjudicating complaints of social media bias online.”
The National Law Review
CDC Issues Guidance Warning Against Use of Antibody Testing in Making Decisions Regarding Returning Employees to the Workplace
“[T]he CDC states that, at this time, antibody testing:
Working (Cyber) Safely From Home During COVID-19
“Th[e] sudden shift to working from home significantly increases cyber risks to businesses. The United States Department of Homeland Security and Cybersecurity and Infrastructure Security Agency, together with the United Kingdom’s National Cyber Security Centre, issued a joint alert on how COVID-19 is being exploited by malicious cyber actors. . . . There are, however, steps individuals and organizations can take to help reduce cybersecurity risks.”
Insurer Rejects Extra Coverage For Events Axed Due To Virus
“U.S. Specialty Insurance Co. is asking a Texas federal court to declare an advisory firm can't ask for additional coverage beyond its $150 million limit over events canceled in the wake of the COVID-19 pandemic, saying there's nothing in the policy entitling the firm to seek more money.”
Tech Will Play Key Role In Real Estate's Road To Recovery
“The COVID-19 crisis has further exposed vulnerabilities and friction points in real estate, in some cases to a degree that will necessitate complete rebuilding of core business models. This is a time to reflect on key aspects of the proptech industry's success in recent years and to recognize where real estate companies can capitalize on those proof-of-concept technology-driven models to rebuild for the future.”
Colleges Face Student Lawsuits Seeking Refunds After Coronavirus Closures
“The students claim that when campuses shut down amid the coronavirus pandemic, they should have been entitled to more of their money back. And the list of institutions facing such challenges is growing, including private universities, such as Cornell, Vanderbilt, Liberty and Temple, and entire public systems in California, Florida, North Carolina and Arizona.”
The Denver Channel
ACLU sues Polis, Department of Corrections over COVID-19 response in prisons
“The American Civil Liberties Union of Colorado on Thursday filed a class action lawsuit on behalf of inmates against Gov. Jared Polis and the Department of Corrections over state officials' response to COVID-19 in Colorado prisons.
The suit is seeking an emergency order ‘to compel the DOC to protect medically vulnerable incarcerated people from COVID-19,’ an ACLU news release said.”
Thursday, May 28, 2020
Trump Executive Order Aims to Shrink Liability Shield for Social Media Giants
“Donald Trump has been raging against Twitter Inc. since the social media platform that helped vault him to the presidency slapped fact-check links on a pair of his tweets.
Now, he’s poised to take action Thursday that could bring a flurry of lawsuits down on Twitter, Facebook Inc. and other technology giants by having the government narrow liability protections that they enjoy for third parties’ posts, according to a draft of an executive order obtained by Bloomberg.”
LA, Chicago Impose Virus-Inspired Layoff, Leave Mandates
In response to the coronavirus pandemic, cities such as Los Angeles and Chicago are pursuing employment ordinances. “Those ordinances and others that have passed or been proposed in New York City, Philadelphia, San Francisco, Seattle, and elsewhere aim to protect workers from unexpected job losses, workplace safety concerns, or the pressure to come to work despite personal health risks.
Management-side employment attorneys, however, said the ordinances bring compliance challenges and litigation threats that increase the already-significant risk for businesses reopening during and after the pandemic. The new Chicago and LA ordinances, in particular, give workers the option to sue employers who violate them.”
INSIGHT: Legal Hiring in a Recession—Lessons From the Past Downturn
“With so much uncertainty surrounding Covid-19, some companies will opt to halt all hiring until the pandemic ends. . . . Many law firms and legal departments react to financial stress and worry by hunkering down. After all, it’s hard to see past the upheaval of the moment we’re in, when entire populations around the world are facing political turmoil, financial distress, illness, and devastating loss of life. While understandable, fear-driven paralysis is inherently dangerous to businesses. This is because while some are ‘waiting it out,’ others are not. Some competitors are acting opportunistically, diving headfirst into proactive mode, taking strategic steps to ensure their survival—and success—after the dust has settled.”
The National Law Review
COVID-19 Workforce Shortages Threatening Your Construction Project? Review Your Indemnity Rights
“COVID-19 has created chaos in the construction world. . . . Beyond simply slowing projects, some contractors are looking to terminate contracts due to a lack of available workforce, which can throw a project schedule — and budget — into turmoil. Prudent contract partners need to know their rights with respect to contract termination and to indemnification to the extent and if termination causes damage.”
State Insurance Commissioners Issue Notices Regarding Business Interruption Coverage
“The insurance commissioners of various states including Arkansas, Georgia, Kansas, Maryland, North Carolina and West Virginia recently issued letters, bulletins and press releases regarding business interruption coverage. Notably, several Insurance Commissioners’ notices specify that COVID-19 claims will likely not be covered due to virus exclusions. The high points of these communications are summarized” in this article.
Enterprise Hit With WARN Act Suit Over COVID-19 Mass Layoff
“A 34-year Enterprise Rent-A-Car employee laid off amid the novel coronavirus pandemic hit the company with a proposed class action in Florida federal court Wednesday, alleging its failure to notify its workers of coming mass layoffs ‘had a devastating economic impact’ and violated the WARN Act.”
Garnishment Must Be Clarified In Pandemic Relief Laws
“In response to the growing coronavirus pandemic, Congress recently enacted two unprecedented economic stimulus laws to provide much-needed financial support for struggling individuals and families and distressed businesses, as well as hospitals and health care workers.
In its haste to enact this legislation, however, Congress appears to have overlooked an important issue: to provide exemptions from garnishment by private creditors for federal stimulus payments for individuals and Paycheck Protection Program loan proceeds for small business owners.”
5 Ways Corporate Legal Departments Are Using Tech to Manage COVID-19
“Corporate legal departments grappling with this new reality may find themselves increasingly reliant upon technology to help them continue to drive value within their respective organizations.” For example, In-house counsel may look to outside counsel for ways to operate more efficiently such as using technology to do simple tasks, providing more cost predictability; using e-billing and spending tools to reinforce billing guidelines and analyze law firm rates; or relying more heavily on data (from outcome and cost prediction to settlement strategies) to control legal spend.
New York Magazine
Will the Supreme Court Force States to Let Churches Reopen?
“‘A California church asked the Supreme Court over Memorial Day weekend for an exemption to the state’s stay-at-home order, claiming that the order violates the Constitution when applied to places of worship.’. . .
The current constitutional standard for ‘religious liberty’ complaints against government regulation is essentially that religious institutions cannot be held to different standards than their secular counterparts.”
Wednesday, May 27, 2020
Insurance and the New, Post-COVID-19 Normal
“In today’s climate, data accrued in the last couple months are of more value than data accumulated across the last five years. This means that all AI-based models need to be rebuilt to address the new trends we currently see. What’s more, scaling analytical processes and deploying automatically-updating AI models is critical now, more than ever.
In this article we will first highlight key struggles facing the industry by line of business, then we will provide examples for how AI can aid to shed more light as the situation develops.”
U.S. lawmaker wants insurers, govt. to share future pandemic business losses
“U.S. legislation introduced on Tuesday would create a taxpayer-backed insurance program to protect businesses from revenue losses during future pandemics and require insurers to pay a slice of the claims.”
INSIGHT: Insurance Will Cover Coronavirus if Asbestos Lessons Prevail
“Insurance claims related to Covid-19 are ongoing and potentially of huge magnitude. . . .[A]ttorneys say the insurance industry should apply lessons learned from years of asbestos litigation and lawsuits involving coverage for other types of exposures, and work with policyholders and Congress to craft a mechanism to resolve claims.”
INSIGHT: Legal Holds During the Pandemic—Don’t Forget Personal Devices
“With so much to juggle in response to the global pandemic, legal holds may be the last thing on an individual’s mind. But it is important that law departments remain mindful of and vigilant concerning existing legal holds and be thoughtful and proactive about information that may be responsive or relevant to future litigation arising out of the pandemic.”
A Guide To Evaluating And Advertising COVID-19 Products
“As businesses consider how to reopen safely, they may be evaluating products, such as disinfectants, sanitizers, ultraviolet sterilizing devices, antimicrobial coatings and air filtration devices, that could help mitigate the transmission and spread of COVID-19 in the workplace or retail establishment.
Some businesses see tremendous new opportunities in manufacturing and marketing these products. However, care must be taken in doing so because while the virus may be novel, the standards for evaluating advertising claims for products claimed to prevent its spread are not. Indeed, the plaintiffs’ bar and competitors are constantly watching for overstated claims, resulting in self-policing.”
Cisco, Finjan IP Trial Delayed Until October Due To Pandemic
“A California federal judge on Tuesday delayed a trial in Finjan's patent infringement suit against Cisco from June until October because of the coronavirus pandemic, saying she had ‘high hopes’ it would be the first civil jury trial in the district, but the court's ‘enormous backlog’ of criminal cases takes priority. . . . Finjan initially hit Cisco with a lawsuit in January 2017 alleging its products infringe five Finjan patents that cover ways to protect computers from malicious software and viruses when connected to the internet. Finjan claims that Cisco's infringement began when it acquired technology from a company called Sourcefire Inc. and then refused to enter a licensing agreement with Finjan.
Cisco denies the allegations and has sought to invalidate at least some of the patents-in-suit.”
SEC Pursues Coronavirus Fraudsters With Help From Whistleblowers
“The novel coronavirus outbreak and economic fallout is proving to be a bonanza for whistleblower lawyers as the U.S. securities regulator cracks down on a range of related misconduct from companies touting sham cures to misuse of federal aid.”
'I'm looking for the truth': States face criticism for COVID-19 data cover-ups
“As states ramp up their reopenings, some are coming under criticism for making public misleading statistics or concealing information related to the coronavirus outbreak. . . . Such data has been the basis for how quickly states are beginning to open up and return to a sense of normalcy. But government officials in a number of states are facing questions about how open and honest they're being about how the virus is impacting their state.”
Tuesday, May 26, 2020
Goldman Class Cert. Ruling Has COVID-19 Implications: Amici
“A group of law professors and former SEC officials said Friday that the Second Circuit's recent split-panel ruling against Goldman Sachs in a heavily watched class certification fight creates risks to public companies that are now exacerbated by the COVID-19 crisis. . . . ‘These risks are particularly heightened during the ongoing COVID-19 crisis, where aspirational statements about best practices amid a fast-moving global pandemic can be weaponized by plaintiffs and turned into a predicate for a securities fraud class action, as securities markets around the world are extremely volatile,’ according to the brief.”
The Current Barriers To International Health Cooperation
“Few events in modern history have been as comprehensively disruptive as the COVID-19 pandemic, which is simultaneously upending the global markets, our daily lives and everything in between. . . .The current crisis will end and, when it does, the world will be different than it was before. In the business context this means that opportunities will arise in certain industries, while others will experience significant and enduring challenges to existing business models. Given the acute global focus on health that has come with the pandemic, and as longer-term trends toward wellness continue to progress, we expect to see interesting and innovative post-pandemic developments and business strategies arise in the health care industry.”
Trump administration backs lawsuit challenging Illinois coronavirus curbs
“The Trump administration on Friday weighed in on a lawsuit brought against Illinois Governor J.B. Pritzker’s coronavirus stay-at-home orders, with a rare federal court filing in support of the legal challenge he faces over his emergency powers. . . .The Justice Department asserted that Pritzker, a Democrat, acted improperly when he removed the case in question from state court, where it was filed by Republican state Representative Darren Bailey, to a federal court.”
INSIGHT: Covid-19—How are Businesses Adapting Their Operations?
How are “businesses large and small are dealing with tax, legal and workforce issues when converting their normal operations and factories to help fight Covid-19”?
The Public Is Being Misled by Pandemic Technology That Won’t Keep Them Safe
“As scientists and health care professionals in general agree, thermal imaging systems are an inappropriate and ineffective strategy for identifying individual cases of Covid-19 and preventing its spread. Beyond the wasted costs, installing thermal scanning as part of a ‘back to work’ process might create a false sense of security that convinces some to prematurely return to their jobs and emboldens others to relax more effective strategies, such as social distancing and responsible contact tracing efforts.”
The National Law Review
COVID-19: Three Legal Issues for Leagues, Teams, and Stadium Operators as Live Sports Return
Should live sports return during this pandemic, and it seems increasingly likely that they will, sports leagues, teams, and stadium operators must consider several legal issues, including “mitigating risk exposure for players and spectators” and “sponsorship agreements and ‘make goods.’”
Landlord Primer Regarding Practical Recommendations for Reopening Office Buildings
As office buildings re-open to a growing number of occupants, “[t]his increased usage will present a number of challenges as tenants and landlords work to provide access to space and use of commercial office premises in a manner that is both safe and in compliance with official guidelines and regulations.”
Legal Malpractice Payouts Climb, and With COVID-19, No Crest in Sight
“The 2008 recession proved to be a trigger for a previous wave of clients going after their law firms in court. And in the coming years, distressed businesses will undoubtedly look at contracts that weren’t enough to shield them from the manifold consequences of an economy that was abruptly forced to shut down and seek to pin blame on their lawyers.”
The Legal Sector Must Ensure COVID-19 Does Not Create More Barriers to Diversity
“Across law firms and society more broadly the impacts of COVID-19 and how we have responded to it are having a profoundly different set of outcomes for different groups. If these impacts are left unaddressed, they will further exacerbate barriers to building more inclusive workplaces and societies. The legal sector needs to be strategic and proactive in making sure that inclusion does not emerge as an additional victim in this terrible moment.”
Older Workers Returning to Office Fear Both Virus and Job Loss
“Older workers, among the most vulnerable to the deadly consequences of the coronavirus, face a sobering choice: Return to work and risk exposure, or refuse and face potential retaliation. . . .If this growing sector of the workforce wants to challenge hiring and firing decisions in court, they’ll encounter legal hurdles while dealing with a more difficult economic recovery compared to younger workers. Return-to-work plans on the horizon and companies reducing their workforce may mean a spike in age discrimination claims, employment attorneys and academics say.”
Federal Workers See Risks to Them in Trump Push to Reopen U.S.
“As Donald Trump presses states to reopen, government workers and their unions say they’re increasingly concerned that their bosses will force them back to the office without sufficient protection.”
Workers’ Lawsuit Against McDonald’s Seeks Safety Measures, Not Damages
“Workers and their families at McDonald’s Corp.’s Chicago restaurants have filed a class-action lawsuit against the fast-food chain that does not seek money for sick staff, but compliance with health guidance such as providing clean face masks.”
What’s a Life Worth? America Weighs Costs, Benefits of Social Distancing
“As the federal government, states and — more important, perhaps — individuals start to design their own ‘Is it worth it?’ calculus, Americans are subjectively measuring the stakes and unavoidably helping to frame a national referendum on risk.”
Friday, May 22, 2020
Short on time, jilted M&A target Forescout proposes TRO to salvage Advent deal
“The COVID-19 pandemic is forcing M&A litigators to think faster than they ever have before. . .This dispute, in other words, is the latest contractually complicated, factually ornate showdown between a remorseful private equity buyer and a target whose business has been affected by COVID-19.”
U.S. insurers propose taxpayer-funded business-loss coverage for future pandemics
“With U.S. insurance companies facing criticism over their response to the coronavirus outbreak, three industry groups on Thursday proposed putting the Federal Emergency Management Agency (FEMA) in charge of a taxpayer-backed program to protect businesses from revenue losses during future pandemics.”
NLRB Gets Covid-Related Unfair Labor Practice Charges
“Workers at two U.S. companies have filed cases with the National Labor Relations Board challenging changes to their working conditions spurred by the Covid-19 pandemic.” However, the NLRB stated that unfair labor practice charges for March 2020 declined nearly 25% from March 2019 filings, “suggesting there hasn’t been an uptick in cases related to the pandemic.”
INSIGHT: Zooming and Attorney-Client Privilege
“The use of videoconferencing like Zoom is skyrocketing during the coronavirus pandemic, but the legal profession must keep in mind the accompanying risks to the privacy of client data and attorney-client privilege.” This article “examine[s] common videoconferencing practices and pitfalls that could lead to waivers of attorney-client privilege.”
The National Law Review
Aviation Operations In A COVID-19 Environment
“[A]s restrictions are eased, additional considerations and extra precautions are necessary when resuming aviation operations in an environment where the risk of spreading the virus continues.”
The Pandemic Effect: The Outsourced Service Provider as a Resource
“The common factor between those returning physically to a pre-COVID existence, and those setting a new path for themselves will be a realization that our reliance on any outsourced service provider before the outbreak was nothing compared to what it will be moving forward.”
The Jerusalem Post
Federal inmates with COVID-19 in Louisiana continued working for days
“The union for corrections officers at one of the US federal prisons hardest hit by the coronavirus pandemic has filed a US Labor Department complaint alleging that prison managers failed to isolate several inmates who tested positive for the illness.”
States, companies set up their own COVID-19 legal shields
“States and some companies aren’t waiting for Congress and the White House to work out a possible liability shield and are instead taking steps to insulate businesses on their own from lawsuits in the coronavirus era.”
Patent Litigation May Be On The Rise During Pandemic
“Since the outbreak in 2020 of the novel coronavirus that causes the deadly respiratory disease COVID-19, many sectors of the economy have slowed dramatically. Litigation in general is no different: Overall in the U.S. in 2020, litigation is down.” While copyright and trademark filings seem to follow this trend, patent filings show a marked increase. This article explores potential reasons for this proliferation.
Federal Coronavirus Business Interruption Suits Now Top 100; Many More Expected
“A federal court has received notice that 101 lawsuits have been filed as of Wednesday seeking coverage from insurers for business interruption losses caused by COVID-19. . . The 101 cases filed so far — which does not include suits filed in state courts — were tagged by the U.S. Judicial Panel on Multidistrict Litigation because they are related to a petition filed by groups of plaintiffs in Philadelphia and Chicago to assign to a single judge all COVID-19 business-interruption lawsuits filed in federal courts.”