Metropolitan Corporate Counsel invites you to join us for How to Build a Diversity Initiative in Support of ABA Resolution 113, a complimentary webinar on Wednesday, August 23rd at 1:00 pm EST.

CLICK HERE TO REGISTER

With so many departments using e-billing systems today, it is easy to track work performed in hours and dollars down to the timekeeper level, rather than simply looking at firm ownership alone. Diversity information can be reported and used to demonstrate contributions to the corporate goals, create targets for improvement, and to initiate meaningful conversations with firms about hiring and staffing practices. This session will offer a facilitated discussion on the potential pitfalls, and ethical, legal, and privacy issues associated with building a diversity initiative.

Led by industry experts Kris Satkunas and Dan Ruderman of LexisNexis CounselLink, this event will include a panel of legal department executives discussing specific ways to champion a diversity initiative, including:

• establishing guidelines and expectations
• communicating with outside counsel
• building and evaluating a law firm panel that meets diversity goals
• communicating progress to internal stakeholders

By attending this online event you will come away with a specific process for asking for, capturing, and reporting on the timekeeper information gathered.

Those who register will also receive a link for on-demand viewing in case you are unable to attend the live event.

We welcome you to forward this invitation to any of your colleagues who may find it to be of interest.

How to Build a Diversity Initiative in Support of ABA Resolution 113

Date: Wednesday, August 23, 2017

Time: 1:00 pm Eastern Daylight Time

CLICK HERE TO REGISTER

Metropolitan Corporate Counsel is excited to invite our readers to attend the new CLE in the City Series, supported by all of the major New York City law firms that came together to host the ABA Annual Meeting. This innovative collection of programs will be presented at leading firms and other special venues in midtown Manhattan on Thursday, August 10, and Friday, August 11.

Mix and match from 12 substantive tracks to fit your legal interests, including standards like corporate governance and commercial litigation, as well as newer areas like artificial intelligence and cybercrime. Each track will include three programs (1.5 hours of CLE credit each, for a total of 4.5 CLE credits) and a lunch speaker.

Among the speakers are:

-Catherine Amirfar of Debevoise & Plimpton LLP
-Tom C. Baxter Jr. of Sullivan & Cromwell LLP
-IBM Watson accompanied by John Douglas of Davis Polk & Wardwell LLP
-Hon. Colleen McMahon, Chief Judge, U.S. District Court for the Southern District of New York and Hon. Barry R. Ostrager, Justice, Supreme Court of the State of New York, Commercial Division
-Jed S. Rakoff, United States District Judge, Southern District of New York
-New York County District Attorney Cyrus R. Vance, Jr.

Tickets are $25 per program. Add a ticket for a presentation by one of the prominent speakers above (non-CLE) for only $20.

The CLE in the City Series is co-chaired by Michael H. Byowitz, of Wachtell Lipton Rosen & Katz, and Stephen P. Younger, of Patterson Belknap Webb & Tyler LLP.

For more information, download the full event brochure.

By Joe Calve

Nine general counsel of non-insurance companies sent a letter to the American Law Institute on the eve of the organization’s annual meeting expressing “strong concern” over the direction taken in its proposed Restatement of Law, Liability Insurance. In response, ALI on May 23 postponed a final vote, noting that the draft’s Reporters needed another year to complete their work. Glenn Lammi, Chief Counsel, Legal Studies Division, of the Washington Legal Foundation, who has tracked this controversy, in an article posted to Forbes (bit.ly/2stN48x) called it “an especially troubling instance of where the American Law Institute (ALI), a private organization known for its ‘Restatements’ of common law in areas such as torts, products liability, and contracts, was instead revising the law. . . . ALI’s stated mission is to ‘clarify’ and ‘modernize’ the law. . . . With projects like the Restatement of the Law, Copyright (which we criticized in a 2015 post) and now the liability insurance Restatement, the organization has been blurring the line between restating and revising.” The following excerpts from the GCs’ letter have been edited for length and style.

As general counsel of major corporations, we fully appreciate that no other private organization of practicing attorneys, judges, and law professors has had more influence on the development of American law than the ALI. Nevertheless, the approach taken in several pending Restatements risks causing irreparable harm to the organization’s reputation in the legal community. . . .

As you know, the ALI membership is scheduled to vote on whether to give final approval to the Restatement of the Law of Liability Insurance. The membership is also scheduled to discuss the Restatement of the Law of Consumer Contracts. Fundamental concerns exist with respect to both projects which go to the heart of the integrity of ALI Restatements of Law.

The Restatement of the Law of Liability Insurance is the ALI’s first venture into the highly complex field of liability insurance. This fact alone warrants extra caution and attention in developing recommended “black letter” common law rules. As you are aware, this project began as a Principles of Law project which allowed the Reporters greater leeway in fulfilling academic aspirations. Restatements, in comparison, are supposed to be based on existing law and comport with the ALI Style Manual’s enumerated “elements” for a Restatement. The Proposed Final Draft of the Restatement of the Law of Liability Insurance, however, appears to contain vestiges from when the work product was a Principles project, as well as numerous subsequent provisions which do not satisfy the traditional elements of a Restatement.

For example, all of the undersigned seek to use words in our contracts that are clear and coherent. We expect courts will follow the “plain meaning” of these words. The Restatement of the Law of Liability Insurance departs from this most basic “plain meaning rule” to allow extrinsic evidence to be considered even when a contract is clear. This provision would set a troubling precedent with respect to the interpretation of insurance policy terms, and possibly terms in other types of contracts.

In addition, this Restatement includes an unprecedented endorsement of one-way attorney fee shifting that departs from the traditional “American Rule” that each party is responsible for his or her own attorney’s fees. The project, in multiple contexts, recommends that an insurer that loses a dispute with a policyholder would have to pay that policyholder’s legal fees, but if the insurer prevailed, it would have to pay its own attorney’s fees. Although we, the undersigned, might benefit from such a provision in our capacity as corporate policyholders, it is wholly inappropriate to address the very controversial issue of one-way attorney fee shifting in the context of a Restatement on the topic of liability insurance where attorney fee shifting is not inherently an insurance law issue. Rather, this issue reflects a broader public policy matter most often determined by state legislatures, not common law judges. The Restatement’s approach to attorney fee shifting, similar to the project’s approach to the “plain meaning rule,” could set a troubling precedent in contexts outside of insurance.

These examples represent only a small sampling of the concerns about this Restatement. Our understanding is that a number of motions have been submitted by ALI members addressing other specific ongoing project concerns, including an overarching request to postpone the scheduled final project vote or recommit specific provisions that do not comport with the elements of a Restatement. We agree with the underlying objective of these motions: the ALI should not finalize this project at the Annual Meeting.

Many of the same basic concerns with the Restatement of the Law of Liability Insurance exist with respect to the proposed Restatement of the Law of Consumer Contracts. Although this Restatement will not be voted on at the Annual Meeting, the idea that the ALI is even considering this project as a Restatement is deeply troubling. As general counsel, we address a multiplicity of legal issues every day. In our collective experience, we do not believe that so-called “consumer contracts” represents a separate body of law from the general law of contracts.

It is our understanding that the ALI has never before followed a path of creating separate legal rules for “consumers” versus any other entity. We are also unaware of any courts making such a distinction and applying the law differently based solely on whether a party is a business or an individual “consumer.”

Of equal importance, this Restatement attempts to create separate “consumer contract” rules that are not grounded in existing case law. It relies on a patchwork of other laws, most notably state consumer protection statutes. As you are aware, such statutory law was designed to prevent deceptive marketing practices; it is not a basis for the development of contract law. Yet, this Restatement proposes to give consumers broad new legal remedies to challenge virtually any contract involving consumers, and appears to empower judges to exert broad new authority to change contracts absent existing common law precedent.

Both of these Restatement projects demonstrate that the ALI has reached a key decision point between allowing Restatements of Law to reflect a Reporter’s subjective and aspirational views of what a common law rule “should be” versus the ALI’s governing directive of clarifying and simplifying prevailing common law rules. We respectfully submit that the ALI should pursue the latter approach to preserve the credibility and reliability of its body of work.

Article by: Michael W. Peregrine

The challenges associated with board oversight duties in “crisis situations,” and related expectations regarding director attentiveness, are highlighted in a recent Wall Street Journal article concerning Theranos. It serves as a reminder of the valuable role that general counsel can play in supporting the ability of directors to satisfy these duties and expectations.

Two former Theranos directors were criticized in the article, which ran on May 30. They were taken to task for their lax oversight of corporate operations. Based on a review of depositions given by the directors, the article suggested that they had failed to follow up on public allegations that the company was using standard technology in its blood testing operations, rather than its touted proprietary technology. The inference (fairly or unfairly) was that these allegations were a significant warning sign of the company’s emerging financial, regulatory and reputational problems.

The article included specific excerpts from the directors’ respective depositions in which they seemingly acknowledge that, the public allegations notwithstanding, they made no separate inquiry of the CEO as to whether the proprietary technology was working as planned. One of the directors was quoted as testifying that he “didn’t probe into” that issue: “It didn’t occur to me.” He was further quoted as adding, “Since I didn’t know, I didn’t have anything to look into.”

The clear theme of the article was that the two directors were deficient in the exercise of their oversight obligations, and that the public allegations were “red flags” of corporate or executive misconduct that they missed, to the detriment of the company and its investors. To buttress this theme, the article included criticism from a law professor who noted that it is “a board’s fiduciary duty to find out what was going on.”

Media stories questioning whether directors have satisfied their fiduciary obligations are nothing new, especially in highly public corporate controversies. And it’s never fair to draw conclusions of director culpability from media reports – there are always two sides. But what is unusual about this matter – what could make many directors pause for a deep breath – is that these allegations implicated directors of exceptional national prominence and credibility. These are two individuals who by their life’s work could be expected to be the most competent of fiduciaries (and may well have been in this case, the article notwithstanding).

One is former U.S. Secretary of State George Shultz, an enormously respected adviser who has dedicated much of his life to Cabinet-level public service. The other is the former chief of naval operations, Adm. Gary Roughead. These are serious people who have dedicated their lives to public service.

When such credible and capable individuals can be publicly criticized for lack of attentiveness, it’s reasonable to expect a ripple effect in the boardroom. The typical director can be excused for having some concerns about his or her liability exposure. “If this kind of guy can’t do the job,” a director may think, “how can I be expected to do it?”

And that’s a concern that should not go unaddressed, for the sake of both board effectiveness and director retention. The Theranos story could serve as a useful teaching moment that an attentive general counsel can use to bridge the “confusion gap” and give the board an understanding of what might reasonably constitute a red flag that requires some form of response.

Step one is for the general counsel to review the basics: namely, that the oversight obligation requires the board to have a thorough knowledge of corporate affairs. The board is not expected to ferret out corporate wrongdoing or risk, absent a particular warning sign that a cause for suspicion exists. Board action is not required until it is presented with extraordinary facts or circumstances. But when it is, that’s the point at which the board has a known duty to act, and must do so proactively.

But here’s the rub: There’s no one-size-fits-all legally binding definition of “red flag” that a director can keep in his or her pocket and periodically refer to in times of controversy. So the general counsel who aims to guide directors might start with a hypothetical involving something that, on its own, is innocuous, but when combined with other information of which the board is already aware, would require an immediate board response. In other words, a red flag is more than just bad news. It’s the kind of thing that would make a director want to raise his or her hand high, and hold it there until an adequate answer is provided.

If this is not clear enough, the general counsel can then offer examples of what courts – including those outside of Delaware – have found to constitute red flags. And those fall within a wide range of circumstances, including but not limited to financial discrepancies, governmental inquiries, credible whistleblower reports, serious conflicts of interest, sudden executive departures, notable swings in operational results and unusual executive conduct. And it can include omissions as well as commissions, such as the continuing failure to recruit top talent; persistent director absences at board meetings; notable departures from traditional quality of management reporting; excessive qualifications in legal or accounting opinions; etc.

The general counsel could also offer examples of what courts have found to be proper board responses to red flags. The GC’s goal is not to deliver an all-inclusive list of red flags to which directors can refer in times of trouble. It’s to provide value by sketching, in practical and understandable terms, the contours of a warning sign. You want them to be comfortable that they’ll know it when they see it. And that can’t help but contribute to the effectiveness of a director’s oversight duties, even if the director isn’t a former Cabinet officer or a renowned military leader.

Michael W. Peregrine, a partner in McDermott Will & Emery, advises corporations, officers and directors on matters relating to corporate governance, fiduciary duties and officer/director liability issues. His views do not necessarily reflect those of his firm or its clients. He can be reached at mperegrine@mwe.com.

Article by: Kyle Reykalin / FRONTEO

Conducting cost-effective and efficient e-discovery for Foreign Corrupt Practices Act investigations involving U.S. and Japanese companies requires a rare combination of legal, cultural and technological skills. Here are seven common obstacles, and practical tips to help e-discovery teams overcome them.

1. Bridge dissimilar legal systems. It’s important to understand the differences between the two legal systems. Japanese in-house counsel are often surprised at the scope, expense and formality of the American discovery process, as well as the danger that their confidential business documents and strategies might be shared. American attorneys occasionally assume that the in-house legal departments of large Japanese corporations are familiar with uniquely American legal concepts, such as attorney-client privilege. Care must be taken to clearly explain the requirements of confidentiality, electronically stored information collection, the obligations of legal hold and other discovery concepts.
2. Know the culture and business practices. An experienced local team adds great value. They will be familiar with Japanese customs and culture, as well as the ebb and flow of FCPA cases. For example, when deciding on keywords for your data set, there are similarities across matters in the terms used in discussions of bribery or payoffs. In Japan, the practice of offering gifts or honoraria to important business partners and clients is customary and can be difficult to discern from a bribe. On the other hand, seemingly ordinary language about gifts or payments may mask illicit behaviors prohibited under the FCPA. The nuances of language are critically important, especially for developing effective search terms and evaluating results.
3. Establish a local or regional team. An experienced provider will have processes for compliance with local data privacy laws, and may offer local hosting as well. The availability of bilingual or multilingual review attorneys in multiple regions allows for flexibility in staffing document review, privilege review and quality control phases, and obviates any concerns about data leaving the country.
4. Take advantage of technology assisted review (TAR). The use of advanced analytics in early case assessment and in batching documents for review assignments can improve efficiency in most cases, especially those where, as mentioned above, determining keywords is difficult. We often batch documents by topic, rather than by custodian. In a competitive or antitrust investigation, for example, batching documents by product family or project, and including entire email threads and attachments, provides the reviewer with a cohesive topic, revealing important issues and events, leading to more consistent coding and quickly making reviewers knowledgeable about key topics.
5. Plan for multilanguage content. Document collections in global FCPA cases are often a mix of multiple languages: Japanese and English, and sometimes others. This is a result of normal business communication among subsidiaries, suppliers, sales channels and customers across global regions. Tools designed for English do not always work well with multibyte character sets and tokenization issues in Chinese, Japanese and Korean content. An experienced provider will have solutions for Asian language challenges, such as encoded content and support for conversation threading.
6. Minimize translation. Translation of documents increases cost and adds the risk of challenges by the opposing side. It may also invite misinterpretation of the documents. In some investigations, especially criminal matters, the government may require that all documents handed over as part of a proffer be translated into English. But in civil litigation, the court may only require translation of documents to be used as deposition exhibits, attachments to briefs or trial exhibits. In either case, conducting a first-cut review to determine relevance before translation of documents reduces the volume of high-cost translations.
7. Conduct a thorough privilege review. The concept of attorney-client privilege as we know it in the U.S. does not really exist in Japan. Thus, Japanese attorneys without experience in American litigation are not familiar with our tests for privilege and work product. Conduct a focused privilege review performed by an attorney who is well-versed in attorney-client privilege. Conduct a follow-on quality review of documents marked not privileged to catch coding errors.

Managing e-discovery in response to FCPA investigations in Japan involves a fascinating mix of legal, cultural, linguistic and technical challenges. An experienced e-discovery provider working in partnership with U.S. litigation counsel and local law departments can help foresee and avoid costly blunders.

Kyle Reykalin is director of review services at FRONTEO in Tokyo, where he manages large-scale e-discovery review projects and specializes particularly in Japan-U.S. cross-border litigation, including civil and criminal antitrust matters, FCPA investigations and other U.S. government investigations. He can be reached at kyle_reykalin@fronteo.com.

Article by: Wilfred Coronato / McCarter & English

The year was 1981. “The People’s Court,” “Hill Street Blues” and “Dynasty” all premiered on network television. The price of a first-class stamp rose from 15 to 18 cents. New York City’s Metropolitan Transportation Authority introduced a spiffy brass token with a “Y” cutout in it to cover the 75-cent ride. And New Jersey enacted a statute – the Truth-In-Consumer Contract, Warranty & Notice Act (TCCWNA) – designed to prohibit deceptive terms in consumer contracts, warranties, notices and signs.

Much has changed over the last 36 years. And a lot of those changes are attributable to the internet. Television shows can be streamed and watched on demand. Electronic mail has all but supplanted hand-delivered stamped envelopes. MetroCard swipes pay for the $2.75 transit fare. And the TCCWNA, which was designed to cover hard-copy consumer contracts, is now being applied to the terms of use (TOU) of online sellers’ websites.

Lawyers representing consumers are using this pre-internet statute as the basis for putative class actions alleging that TOU provisions violate the act, entitling any consumer who had visited those websites to a statutory civil penalty of $100, plus fees for the plaintiffs’ attorneys and court costs.

Last year, more than 20 such lawsuits were filed in or removed to federal district court in New Jersey. In most, motions to dismiss have been filed. Defendants have won the vast majority of motions decided thus far, but many remain undecided, and those decisions are not expected until the latter half of this year.

The reason: Decisions in many of the remaining cases have been stayed by court order or joint stipulation pending a decision from the U.S. Court of Appeals for the Third Circuit in Russell v. Croscill Home. Some of the stays also reference two other appeals pending in the Third Circuit: Wenger v. Bob’s Discount Furniture and Spade v. Select Comfort.

The decisions pending at the Third Circuit – and at the New Jersey Supreme Court, to which the federal appellate court has certified two questions – will inform the decisions in the cases stayed in the District of New Jersey, and will largely determine whether plaintiffs abandon or attempt to amend their TCCWNA complaints.

TCCWNA contains two sections that prohibit certain provisions in consumer contracts and other covered writings. The first – Section 15 – prohibits the use of provisions in any written consumer contract or written consumer warranty, notice or sign that “violates any clearly established legal right of a consumer or responsibility of a seller … as established by state or federal law.” The prohibited conduct applies to any “seller, lessor, creditor, lender or bailee,” and, therefore, potentially applies to a wide range of consumer industries, such as retailers, banks, hotel chains, car rental companies, etc. “Consumer” is defined in the act as “any individual who buys, leases, borrows or bails any money, property or service which is primarily for personal, family or household purposes.”

Section 16 prohibits any consumer contract, warranty, notice or sign from containing any provision by which the consumer waives his rights under the act, and prohibits any consumer contract, notice or sign from stating that any of its provisions “is or may be void, unenforceable or inapplicable in some jurisdictions without specifying which provisions are or are not void, unenforceable or inapplicable within the state of New Jersey.” For violations of the act, an “aggrieved consumer” can recover a civil penalty of $100 or actual damages or both, together with reasonable attorney fees and court costs.

My firm, McCarter & English, is amicus counsel on behalf of the New Jersey Defense Association before the Third Circuit in Russell and on behalf of the New Jersey Business & Industry Association in Spade and Wenger. I’m going to discuss what’s at stake in the pending appeals, what online sellers of products and services can expect for the balance of this year, and what they should consider doing to avoid being named a defendant in one of these class action lawsuits.

Russell v. Croscill Home

At issue in Russell is whether the plaintiff meets the injury-in-fact requirement of Article III standing under the United States Supreme Court’s decision in Spokeo v. Robins, and whether the plaintiff is an “aggrieved consumer” under TCCWNA.

In Russell, the plaintiff ordered a tea-light holder through the defendant’s website. According to the plaintiff’s complaint, the website’s TOU violated TCCWNA by including allegedly illegal exculpatory provisions and limiting various remedies. The plaintiff alleged that these provisions violated Section 15 of the act. As noted by the district court, the complaint lacked any allegations that the product was defective, or that any of the provisions of the TOU were invoked by the defendant, or that the plaintiff even read the TOU or was in any way injured. However, the plaintiff claimed that he and each member of the proposed class were entitled to the statutory civil penalty afforded to an “aggrieved consumer.”

In granting the defendant’s motion to dismiss, the district court focused on standing and whether the plaintiff was an “aggrieved consumer.” On the first issue, the district court cited Spokeo and held that the plaintiff did not meet the injury-in-fact requirement, as the plaintiff had sustained no concrete injury. Also relying on Spokeo, the district court held that a “concrete injury must be de facto, that is, it must actually exist” and “a plaintiff [does not] automatically satisf[y] the injury-in-fact requirement whenever a statute grants a person a statutory right.”

Using similar reasoning, the district court also held that the plaintiff was not an “aggrieved consumer” under TCCWNA. Adopting the definition of “aggrieved party” in Black’s Law Dictionary as “one entitled to a remedy, especially a party who’s [sic] personal, pecuniary or property rights have been adversely affected by another person’s action,” the district court held that the plaintiff did not match the definition because he had not alleged any losses stemming from the terms and conditions of the defendant’s website.

Briefing on the plaintiff’s appeal to the Third Circuit in Russell has been completed, and on June 13 the court stayed the appeal pending the New Jersey Supreme Court’s answer to certified questions in Spade and Wenger. (An appeal of a dismissal of a TCCWNA claim on Spokeo grounds is also currently pending in the Ninth Circuit.)

Wenger and Spade

Neither of these cases involves an online TOU. However, each case may provide clarification of the term “aggrieved consumer” and what constitutes a violation of a “clearly established legal right of a consumer or responsibility of a seller.”

In Wenger and Spade, plaintiffs brought claims for statutory damages under TCCWNA predicated on alleged violations of New Jersey’s Delivery of Household Furniture and Furnishings Regulations. The Furniture Delivery Regulations include rules about timely delivery and language that must be included in a furniture sales contact. In both cases, the furniture was timely delivered, but the contracts allegedly did not fully comply with the regulations.

The district court ruled in both cases that the plaintiffs failed to allege a cause of action under TCCWNA because they were not “aggrieved.” The district court reasoned that “both defendants provided delivery dates and timely delivered the merchandise, and in Spade, the plaintiff received a refund for defective furniture.” Therefore, the defendants’ actions were in accordance with the spirit of the regulations, even if they may not have met the written requirements.

On appeal, the Third Circuit has in each case certified two questions to the New Jersey Supreme Court: “(1) Is a consumer who receives a contract that does not comply with the Furniture Delivery Regulations, but has not suffered any adverse consequences from the noncompliance, an ‘aggrieved consumer’ under the TCCWNA? (2) Does a violation of the Furniture Delivery Regulations alone constitute a violation of a clearly established right or responsibility of the seller under the TCCWNA and thus provide a basis for relief under the TCCWNA?” Answers to these questions will inform the decision on appeal in Russell and the other cases stayed in the District of New Jersey.

The Bottom Line

If the Third Circuit affirms in Russell, Wenger and Spade, some plaintiffs in the stayed cases with pending motions may abandon their claims. Other plaintiffs, on the other hand, may try to amend their complaints to meet whatever the Third Circuit may say is required to withstand a motion to dismiss.

If the Third Circuit rules in favor of the plaintiffs, viable defenses remain to defeat these claims. The district court will have to consider other arguments raised in these motions that are not the subject of the pending appeals, including whether the TOU provisions at issue violate a “clearly established legal right of a consumer or responsibility of a seller” or, in cases alleging a Section 16 violation, whether the TOU contains a prohibited geographic qualifier or a choice-of-law provision that requires application of the law of a state other than New Jersey that bars application of the TCCWNA. (See, e.g., Palomino v. Facebook [N.D. Cal. Jan. 9, 2017], granting motion to dismiss the TCCWNA claim on the ground that California choice-of-law clause in Facebook’s online TOU was enforceable.)

Even if the pending cases can overcome motions to dismiss, the question remains as to whether these cases are appropriate for class certification. That question may be informed by two more cases pending before the New Jersey Supreme Court: Dugan v. TGI Friday’s and Bozzi v. OSI Restaurant Partners. In both cases, the court will decide whether class certification is appropriate where plaintiffs allege that defendant violated the Consumer Fraud Act and the TCCWNA by failing to include drink prices on its menu. (McCarter & English also appeared and argued as amicus counsel on behalf of the New Jersey Business & Industry Association before the New Jersey Supreme Court in Dugan and Bozzi.)

Online sellers can expect fewer new case filings than in 2016, at least until these pending appeals are decided. If you are an online seller who has not yet been sued, you may want to consider reviewing and revising your website’s TOU now to minimize your risk of being a defendant in a class action lawsuit – and maximize your defenses if you are.

Wilfred Coronato is a partner in the Newark office of McCarter & English. He focuses on pharmaceutical and complex commercial litigation. As a first-chair trial lawyer, he recently won the first-ever defense verdict in a fen-phen primary pulmonary hypertension case in which a jury considered liability and causation simultaneously. He can be reached at wcoronato@mccarter.com.

Article by: Charlie Platt / iDiscovery Solutions

I’ve written on this topic before, and despite the danger of sounding like a broken record, I will repeat myself: Cybersecurity is all about risk management. Many of you are likely working with your company’s chief information security officer (CISO) and security teams to help assess and control this cyberrisk. (At least I hope you are.) And one of the first things most security professionals recommend is taking an inventory of your IT assets. In fact, it’s embodied in the first Function of the National Institute of Standards and Technology’s (NIST) Cybersecurity Framework:

“The activities in the Identify Function are foundational for effective use of the Framework. Understanding the business context, the resources that support critical functions, and the related cybersecurity risks enables an organization to focus and prioritize its efforts, consistent with its risk management strategy and business needs. Examples of outcome Categories within this Function include: Asset Management; Business Environment; Governance; Risk Assessment; and Risk Management Strategy.”

Continue Reading Are You Accounting for One of Your Largest Cybersecurity Risks?

Interview with Scott Lefton/AccessData

Scott Lefton is a senior sales engineer at AccessData. Though he is not directly involved in conducting or supervising investigations, he spends a lot of time talking to the people who do, including chief security officers, people in HR and, of course, in-house lawyers. He listens to their “woes,” he said, and suggests software designed to help them. His remarks have been edited for length and style. 

Continue Reading For Internal Investigations, Technology is Playing Catch-up with Technology: Companies focus on hackers and data, and sometimes overlook inside threats

Interview with Mike Koehler / FCPA Professor Blog

 

 When I read The New York Times front-page article in 2012 about Wal-Mart’s alleged bribes in Mexico, I thought it was going to be the U.S. equivalent of Siemens in Germany. Before I ask you about that, can you bring us up to date on Wal-Mart’s FCPA investigation? What has happened over the past five years?

Continue Reading Much Ado About…Little?: How a ‘garden variety’ FCPA investigation of Walmart grabbed the spotlight

Article by James A. Merklinger /  Association of Corporate Counsel (ACC)

 

There is no doubt that 2016 was a record-setting year in the history of the enforcement of the Foreign Corrupt Practices Act. The nearly $2.5 billion in settlements that companies paid to resolve FCPA cases dwarfs the previous year’s figure of $133 million. However, nearly absent from the books last year were incidents in the Middle East. Continue Reading ACC and Dubai Join Forces on Anticorruption Program: Goal is to train in-house counsel active in the Middle East