Ninth Circuit Issues Decision in Novel Clean Water Act Case

The Ninth Circuit issued its long-anticipated decision in the Hawai’i Wildlife Fund v. County of Maui case yesterday. County of Maui affirmed a decision awarding summary judgment to environmental groups based on what the court viewed to be undisputed proof that four effluent disposal wells at a wastewater disposal facility were known to discharge into the Pacific Ocean and that the County of Maui had failed to secure an National Pollutant Discharge Elimination System (NPDES) permit for them.

We have previously blogged regarding existing regulatory uncertainty under the Clean Water Act (CWA). In this case, the Ninth Circuit’s decision focuses on whether a CWA “point source” that indirectly transfers material to relevant waterways falls within the statute. The Ninth Circuit essentially rejected the connection that the wells were “indirect,” instead holding that they were analogous to stormwater collection systems, which had previously been found to be regulated by the CWA.

The court supported this conclusion based on the evidence that the County of Maui knew from the time the wells were constructed “that effluent from the wells would eventually reach the ocean some distance from shore.” The court also noted that the fact that “groundwater plays a role in delivering the pollutants from the wells to navigable water does not preclude liability under the statute.”


© 2018 Schiff Hardin LLP
This post was written by J. Michael Showalter of Schiff Hardin LLP.
Read more Environmental News on the National Law Review Environment News page.

New OCR Checklist Outlines How Health Care Facilities Can Fight Cyber Extortion

As technology has advanced, cyber extortion attacks have risen, and they will continue to be a major security issue for organizations. Cyber extortion can take many forms, but it typically involves cybercriminals demanding money to stop or delay their malicious activities, which include stealing sensitive data or disrupting computer services. Health care and public health sector organizations that maintain sensitive data are often targets for cyber extortion attacks.

Ransomware is a form of cyber extortion where attackers deploy malware targeting an organization’s data, rendering it inaccessible, typically by encryption. The attackers then demand money in exchange for an encryption key to decrypt the data. Even after payment is made, organizations may still lose some of their data.

Other forms of cyber extortion include Denial of Service (DoS) and Distributed Denial of Service (DDoS) attacks. These attacks normally direct a high volume of network traffic to targeted computers so the affected computers cannot respond and are otherwise inaccessible to legitimate users. Here, an attacker may initiate a DoS or DDoS attack against an organization and demand payment to stop the attack.

Additionally, cyber extortion can occur when an attacker gains access to an organization’s computer system, steals sensitive data from the organization and threatens to publish that data. The attacker threatens revealing sensitive data, including protected health information (PHI), to coerce payment.

On January 30, 2018, the HHS Office for Civil Rights (OCR) published a checklist to assist HIPAA covered entities and business associates on how to respond to a cyber extortion attack. Organizations can reduce the chances of a cyber extortion attack by:

  • Implementing a robust risk analysis and risk management program that identifies and addresses cyber risks holistically, throughout the entire organization;
  • Implementing robust inventory and vulnerability identification processes to ensure accuracy and thoroughness of the risk analysis;
  • Training employees to better identify suspicious emails and other messaging technologies that could introduce malicious software into the organization;
  • Deploying proactive anti-malware solutions to identify and prevent malicious software intrusions;
  • Patching systems to fix known vulnerabilities that could be exploited by attackers or malicious software;
  • Hardening internal network defenses and limiting internal network access to deny or slow the lateral movement of an attacker and/or propagation of malicious software;
  • Implementing and testing robust contingency and disaster recovery plans to ensure the organization is capable and ready to recover from a cyber-attack;
  • Encrypting and backing up sensitive data;
  • Implementing robust audit logs and reviewing such logs regularly for suspicious activity; and
  • Remaining vigilant for new and emerging cyber threats and vulnerabilities.

If a cyber extortion attack does happen, organizations should be prepared to take the necessary steps to prevent any more damage. In the event of a cyber-attack or similar emergency an entity:

  • Must execute its response and mitigation procedures and contingency plans;
  • Should report the crime to other law enforcement agencies, which may include state or local law enforcement, the Federal Bureau of Investigation (FBI) and/or the Secret Service. Any such reports should not include protected health information, unless otherwise permitted by the HIPAA Privacy Rule;
  • Should report all cyber threat indicators to federal and information-sharing and analysis organizations (ISAOs), including the Department of Homeland Security, the HHS Assistant Secretary for Preparedness and Response, and private-sector cyber-threat ISAOs.
  • Must report the breach to OCR as soon as possible, but no later than 60 days after the discovery of a breach affecting 500 or more individuals, and notify affected individuals and the media unless a law enforcement official has requested a delay in the reporting. An entity that discovers a breach affecting fewer than 500 individuals has an obligation to notify individuals without unreasonable delay, but no later than 60 days after discovery; and OCR within 60 days after the end of the calendar year in which the breach was discovered.
© 2018 Dinsmore & Shohl LLPDinsmore & Shohl LLP. All rights reserved.

IP Litigation: Raising an Ensnarement Defense Defeats the Doctrine of Equivalents

Is the Doctrine of Equivalents (DOE) dead, once again? Effectively, yes.

All an alleged infringer needs to do is raise an ensnarement defense (a claim that a DOE enlarged hypothetical claim reads on the prior art), and then show that the equivalent element was known in the prior art. Most equivalent elements (not considering other claim elements) are known in the art, which is why they are equivalent!

Under current CAFC precedent, all an alleged infringer has to do is offer some prior art. There is no burden on the alleged infringer to show that a DOE enlarged claim is either anticipated or obvious in view of the prior art.For example, if the equivalent element is presented in any prior art reference, the burden then shifts to the patent owner to prove patentability. But patentability cannot be proven. To do that, one would have to present all that is known in order to argue that the prior art does not disclose the invention. And, of course, this is impossible. Could one even begin to present all knowledge in order to show the absence of some knowledge? Certainly not.

That is why, outside of a DOE enlarged hypothetical claim, at either the U.S. Patent Office (PTO) or before any court, someone arguing a claim is invalid first has the burden of at least presenting a prima facie case of anticipation or obviousness. The burden then shifts to the one urging claim validity to refute the prima facie case. Outside of ensnarement, the concept of proving patentability simply doesn’t exist, and for good reason.

The CAFC’s current precedent regarding how to consider the validity of a doctrine of equivalents enlarged hypothetical claim (hereafter hypothetical claim) is summarized In JANG v. BOS. SCI. CORP. & SCIMED LIFE SYS., INC., 2016-1275, 2016-1575, decided: September 29, 2017.

The Court stated:

“The first step is “to construct a hypothetical claim that literally covers the accused device.” Next, prior art introduced by the accused infringer is assessed to “determine whether the patentee has carried its burden of persuading the court that the hypothetical claim is patentable over the prior art.” Emphasis added.

“The burden of producing evidence of prior art to challenge a hypothetical claim rests with an accused infringer, but the burden of proving patentability of the hypothetical claim rests with the patentee.” Emphasis added.

This precedent does not require the alleged infringer to do any more than merely present the prior art. It fails to require the alleged infringer to provide a prima facie case of anticipation or obviousness.

Before Jang, there was an acknowledgment that the hypothetical claim should be one that would have been allowed by the USPTO. “The pertinent question then becomes whether that hypothetical claim could have been allowed by the PTO over the prior art. WILSON SPORTING GOODS CO. V. DAVID GEOFFREY & ASSOCIATES, 904 F.2d 677 (1990).” But the CAFC has failed to recognize that this means the alleged infringer must then first provide a prima facie case of claim invalidity, as would be required at the PTO.

Thus, the Doctrine of Equivalents is for all intents and purposes dead.


Copyright Davis & Kuelthau, s.c.
This post was written by James E. Lowe, Jr of Davis & Kuelthau, s.c.

The Unique Quandaries Faced in Recovering International Cryptocurrency Frauds

Cryptocurrency itself is a string of computer-generated code.  This line of code is accessed by an owner’s unique passcode secret private key.  Each owner’s cryptocurrency is kept in their “Virtual Wallet”. Virtual wallets are similarly anonymous as are the virtual currency balances. The transfer of cryptocurrency is based upon the block chain protocol, a public decentralized ledger that identifies transactions by a digital code with no link to a person or place.

Practically, there is no public record of virtual currency transfers.  Other than the debtor’s own testimony, a creditor would not know where to begin searching for evidence of virtual currency purchases or transactions. There is no way for a creditor to identify either the owner or location of a transferee’s cryptocurrency address. In some cases, the debtor could honestly state that he does not know the identity of the individual who received his cryptocurrency transfers.

For asset protection purposes, a cryptocurrency account currently functions similarly to offshore banking prior to the IRS’s crackdown of anonymous personal foreign accounts.  Today, it is almost impossible for U.S. citizens to establish an anonymous bank account, or any type of bank account, outside of the U.S. With the advent of Bitcoin, a U.S. citizen can open and maintain a financial account that has creditor protection features similar to an offshore bank account in that the Bitcoin account is anonymous and can be maintained outside the geographical jurisdiction of domestic courts. Since block chains are decentralized, they are not subject to any central authority (such as a bank or other financial institution) that might be legally compelled to provide a court with access or control over assets in its possession. Without the complete private key, no court or legal authority can manipulate ownership of a block chain asset.

At the moment, creditors face obstacles of identifying potential defendants and the international nature of the transaction.  Properly selected offshore fiduciaries holding accounts are unlikely to become subject to the jurisdiction of a court where a defendant may be sued.  Absent jurisdictional authority, a court is powerless to compel the fiduciary to turn over assets. Similarly, a US court could try to compel the party to turn over the account or information about the transaction. The court’s contempt powers could be used to coerce compliance. Arrest and incarceration can be utilized. See In Re Lawrence, 279 F.3d 1294,1300 (11th Cir. 2002); FTC v. Affordable Media Inc., 129 F.3d 1228, 1229 (9thCir. 1999). But, on cruel and unusual punishment grounds, incarceration cannot be imposed forever. If the asset is more important than personal freedom, a court’s power of compliance is limited.

There are two equitable remedies that exist under English common law which could be flexibly applied to these evolving transactions. One existing remedy is the equitable pre-trial discovery device known as a Norwich Pharmacal order requiring third parties to disclose information to potentially identify the wrongdoer, to trace funds and to assist prospective plaintiffs in determining whether a cause of action exists.  (There are five states in the U.S. that also allow for pretrial discovery to identify the wrongdoing.)  Norwich orders, being a flexible tool of equity, could assist in claims involving cryptocurrency transactions.  It may be possible that identification information might come from “know your customer” information given a bitcoin exchange.  Proceedings could be constituted as “the bitcoin holder with the public key number…”  However, the hurdle still exists to identify the wrongdoer.

The second equitable remedy is injunctive relief.  Courts have granted world-wide injunctions, particularly when the impugned conduct is occurring online and globally, such as the internet.  InGoogle Inc. v. Equustete, 2017 SC 34, the Supreme Court of Canada recently held that injunctive relief can be ordered against somebody who is not a party to the underling lawsuit, even if that third party is not guilty of wrongdoing.  Google was ordered to stop displaying search results globally for any Data Link websites.  “The problem in this case, is occurring online and globally.  The internet has no borders; its natural habitat is global.  The only way to ensure interlocutory injunction (order) attain its objection was to have it apply where Google operates – globally.”  Thus, if the third party to the block chain transaction can be identified, there may be a remedy to discover information and wrongdoing.

Therefore, courts will need to apply not only new remedies, but expand existing ones.  While the identities of the buyer and seller are encrypted, a transaction record is maintained on the public ledger. In the future, anti-money laundering laws and cryptocurrency exchanges may require the collection of personal data of customers. Until then, the challenge of recovery will require creativity and experience.


© Horwood Marcus & Berk Chartered 2018.
This post was written by Eric (Rick) S. Rein from Horwood Marcus & Berk Chartered.

Confusion Amongst Texas Courts: When Can Insureds Recover Policy Benefits for Statutory Violations?

While first-party bad faith claims may appear to be a dying notion in other jurisdictions, the tort-based claim in Texas is alive and well. Throughout the years, courts have continued to search for ways to define the common-law standard and balance it with public interest due to the unequal bargaining power in the insured-insurer relationship.For this reason, the law of bad faith in Texas is constantly evolving.

Texas imposes a common law duty on insurers to “deal fairly and in good faith with their insureds.”A breach of the duty of good faith and fair dealing gives rise to a tort cause of action that is separate from any action for breach of the underlying insurance policy.If an insurer breaches its duty of good faith and fair dealing, in addition to interest, court costs and attorney’s fees, the insured can recover actual, i.e. extra-contractual, damages for economic or personal injuries and exemplary damages if: (1) actual damages were awarded for an injury independent of the loss of policy benefits and (2) the insurer’s conduct was fraudulent, malicious, intentional or grossly negligent.Exemplary damages are within the jury’s discretion and “must be reasonably proportioned to actual damages.”5

Texas also provides a statutory scheme for bad-faith claims that allows recovery of extra-contractual damages through a private cause of action against an insurer. The statutory bad-faith tort is governed by Chapter 541 of the Texas Insurance Code (“Code”).The statutory claim is in addition, and a supplement, to the contractual cause of action against an insurer for breach of an insurance policy. Similar to the common law claim, for Code violations the insured may recover economic damages, but only up to three times the amount of economic damages, i.e. treble damages, for violations committed “knowingly.”7

It is not uncommon in first party bad-faith cases for the insured to assert a breach of contract claim against the insurer for breaching the insurance policy and a tort cause of action against the insurer for violations of the Code. However, extra-contractual tort claims brought pursuant to the Code require the same predicate for recovery as a bad faith claim under a good faith and fair dealing violation.Because the frameworks of the statutory and common law claims are so similar, most Texas courts have treated common law claims as redundant.

When considering the damages available under the policy and under the statute, there have been some inconsistencies amongst Texas courts regarding the recovery of policy benefits when there have been statutory violations of the Code. As such, in USAA Texas Lloyds Company v. Gail Menchaca, the Texas Supreme Court seized the opportunity clear up the confusion by addressing the issue of whether an insured can recover policy benefits for Code violations when there has been no breach of the insurance policy.9

USAA v Menchacha

In Menchaca, the Texas Supreme Court acknowledges, “When our decisions create such uncertainties, ‘it is our duty to settle conflicts in order that the confusion will as nearly as possible be set at rest.’”10 Thus, the goal in Menchaca was “to provide clarity regarding the relationship between claims for an insurance policy breach and Insurance Code violations.”11 The primary question was “whether an insured can recover policy benefits as actual damages caused by an insurer’s statutory violation absent a finding that the insured had a contractual right to the benefits under the insurance policy.”12

Following Hurricane Ike in September 2008, Gail Menchaca contacted her homeowner’s insurance company, USAA Texas Lloyds (“USAA”), and reported storm damage to her home.13 The USAA adjuster who inspected Menchaca’s claim found only minimal damage.14 USAA determined that the damage was covered under Menchaca’s policy but declined to pay benefits because the total repair costs did not exceed the deductible under Menchaca’s policy.15 Five months later, at Menchaca’s request, another USAA adjuster re-inspected Menchaca’s home.16 The second adjuster confirmed the first adjuster’s findings and again USAA declined to pay any policy benefits.17 Menchaca filed suit against USAA for breach of the insurance policy and for unfair settlement practices in violation of the Texas Insurance Code. Menchaca sought policy benefits for both claims.18 For the alleged breach of the insurance policy, she sought benefit of the bargain damages, i.e. the amount of her claim for policy benefits and attorney’s fees. For the statutory violations, she sought actual damages, i.e. the loss of the benefits that should have been paid pursuant to the policy, court courts and attorney’s fees.19

The case proceeded to a jury trial and three questions were submitted to the jury.20 Question 1 addressed Menchaca’s breach of contract claim and asked whether USAA failed “to comply with the terms of the insurance policy with respect to the claim for damages filed by Gail Menchaca resulting from Hurricane Ike” and the jury answered “No.” Question 2 addressed Menchaca’s claim for statutory violations and asked “whether USAA engaged in various unfair or deceptive practices, including whether USAA refused to “pay a claim without conducting a reasonable investigation with respect to that claim” and the jury answered “Yes.” Question 3 asked the jury to determine Menchaca’s damages that resulted from either USAA’s failure to comply with the policy or its statutory violations, calculated as “the difference, if any, between the amount USAA should have paid Gail Menchaca for her Hurricane Ike damages and the amount that was actually paid” and the jury answered “$11,350.”21

Both parties moved for judgment in their favor. USAA argued that Menchaca was not entitled to recover for bad faith or extra-contractual liability because the jury found that it did not breach the insurance policy. Menchaca argued that the jury answered Questions 2 and 3 in her favor and neither were dependent on a favorable answer to Question 1. The trial court disregarded Question 1 and entered judgment in Menchaca’s favor. The court of appeals affirmed and the Texas Supreme Court granted USAA’s petition for review.22

In analyzing whether an insured can recover policy benefits as actual damages caused by an insurer’s statutory violation absent a finding that the insured had a contractual right to benefits under the insurance policy, the Court set forth “five distinct but interrelated rules that govern the relationship between contractual and extra-contractual claims in the insurance context.”23 Following the Court’s analysis of these rules, it determined that the court of appeals erred by affirming the trial court’s decision to disregard the jury’s answer to Question 1. The Court further stated, “In light of the parties’ obvious and understandable confusion over our relevant precedent and the effect of that confusion on their arguments in this case, we conclude that a remand is necessary here in the interest of justice.”24 The rules outlined by the Court are as follows:

Rule 1:

General Rule: An insured cannot recover policy benefits for an insurer’s statutory violation if the insured does not have a right to those benefits under the policy.25 This rule is derived from the Court’s rule in that “there can be no claim for bad faith when an insurer has promptly denied a claim that is in fact not covered.”26 Although the fact pattern in Stoker was limited to the bad faith denial of a claim, the Court has since applied the general rule to other types of extra-contractual violations, i.e. failing to properly pay a claim, failing to fairly investigate a claim and failing to effectuate a prompt and fair settlement of the claim.27 The general rule is derived from the fact that Code “only allows an insured to recover actual damages ‘caused by’ the insurer’s statutory violation.”28 In determining whether the insured has to establish a right to benefits and then a breach of the policy to recover policy benefits for statutory violations, the Court stated, “While an insured cannot recover policy benefits for a statutory violation unless the jury finds that the insured had a right to the benefits under the policy, the insured does not also have to establish that the insurer breached the policy by refusing to pay those benefits.”29

Rule 2:

Entitled to Benefits Rule: An insured who establishes a right to receive benefits under an insurance policy can recover policy benefits as “actual damages” under the statute if the insurer’s statutory violation causes the loss of the benefits.30 “If an insurer’s ‘wrongful’ denial of a ‘valid’ claim results from or constitutes a statutory violation, the resulting damages will necessarily include ‘at least the amount of the policy benefits wrongfully withheld.’”31

Rule 3:

Benefits Loss Rule: An insured can recover policy benefits as actual damages under the Insurance Code even if the insured has no right to those benefits under the policy, if the insurer’s conduct caused the insured to lose that contractual right. 32 The Court has recognized this principle in cases alleging claims against an insurer for misrepresenting a policy’s coverage, statutory violations by the insurer which prejudice the insured by waiving its right to deny coverage or is estopped from doing so, and statutory violations that cause the insured to lose a contractual right to benefits that it otherwise would have been entitled to.33 “[A]n insurer that commits a statutory violation that eliminates or reduces its contractual obligations cannot then avail itself of the general rule.”34

Rule 4:

Independent Injury Rule: The first aspect of the rule is that if an insurer’s statutory violation causes an injury independent of the insured’s right to recover policy benefits, the insured may recover damages for that injury even if the policy does not entitle the insured to receive benefits.35 This rule takes into account that there may be some extra-contractual claims that may not “relate to the insurer’s breach of contractual duties to pay covered claims” and recognizes that there may be compensatory damages different from policy benefits that result from the tort of bad faith under common law.36

The second aspect of the independent-injury rule is that an insurer’s violation does not allow the insured to recover any damages beyond policy benefits unless the violation causes an injury that is independent from the loss of the benefits.37 For instance, the Court held in Twin City Fire Ins. Co. v. Davis that “an insured who prevails on a statutory claim cannot recover punitive damages for bad-faith conduct in the absence of independent actual damages arising from that conduct.38 Notably, as it relates to the independent-injury rule, the Court states that an independent-injury claim would be rare, they have yet to encounter one, and “have no occasion to speculate what would constitute a recoverable independent injury.”39

Rule 5:

No-Recovery Rule: An insured cannot recover any damages based on an insurer’s statutory violation unless the insured establishes a right to receive benefits under the policy or an injury independent of a right to benefits.40.


“It is the beginning of wisdom when you recognize that the best you can do is choose which rules you want to live by, and it’s persistent and aggravated imbecility to pretend you can live without any.”41 The Texas Supreme Court has attempted to clear up the confusion caused by its precedent by adopting five rules on the issue of recovery of policy benefits for statutory violations. While the rules appear fairly simplistic and undoubtedly will provide guidance, it remains to be seen whether the opinion actually brings clarity to the situation or simply a lesser degree of confusion for the courts to follow. In any event, the rules in Menchaca appear to weigh in favor of insurers because the law is settled, i.e. there must be a right to receive benefits or a (rare, but possible) independent injury to receive policy benefits for statutory violations.

[1] Universal Life Ins. Co. v. Giles, 950 S.W.2d 48, 53 (Tex. 1997).

[2] Arnold v. Nat’l Cty. Mut. Fire Ins. Co., 725 S.W.2d 165, 167 (Tex. 1987).

[3]Viles v. Sec. Nat’l Ins. Co., 788 S.W.2d 566, 567 (Tex. 1990).

[4] Pena v. State Farm Lloyds, 980 S.W.2d 949, 958 (Tex. App.—Corpus Christi 1998, no pet.); Giles, 950 S.W.2d at 54. See also Arnold, 757 S.W.2d at 168 (stating, “[E]xemplary damages and mental anguish damages are recoverable for a breach of the duty of good faith and fair dealing under the same principles allowing recovery of those damages in other tort actions.”).

[5] Pa Preston Carter Co. v. Tatum, 708 S.W.2d 23, 25 (Tex. App.—Dallas 1985, no writ). There is no set rule or ratio between the amount of actual damages and exemplary damages which will be considered reasonable and the determination is made on a case-by-case basis. Alamo Nat’l Bank v. Kraus, 616 S.W.2d 908, 910 (Tex. 1981).

[6] Texas does not adhere to the Uniform Deceptive Trade Practices Act adopted by many other states, but has its own set of laws, known as the Texas Deceptive Trade Practices Act (“DTPA”). Chapter 541 of the Texas Insurance Code addresses the protection of consumer interests against deceptive, unfair, and prohibited practices within the context of insurance. Chapter 17.50(a)(4) of the DTPA incorporates Chapter 541 of the Texas Insurance Code in its entirety.

[7] TEX. INS. CODE § 541.152

[8] National Sec. Fire & Cas. Co. v. Hurst, 523 S.W.3d 840, 840 (Tex. App.—Houston 14th Dist. 2017, no pet.).

[9] No. 14-0721, 2017 WL 1311752, at *1 (Tex. 2017).

[10] 2017 WL 1311752, at *1.

[11] Id. at *3.

[12[ Id. at *1.

[13] Id. 

[14] Id. 

[15] Id. 

[16] Id. 

[17] Id. 

[18] Id. 

[19] Id. at *3.

[20] Id. at *2.

[21] Id.

[22] Id.

[23] Id. at *4.

[24] Id. at *14

[25] TEX. INS. CODE § 541.151; Stoker, 903 S.W.2d at 341.

[26] Republic Ins. Co. v. Stoker, 903 S.W.2d 338, 341 (Tex. 1995).

[27] Menchaca, 2017 WL 1311752, at *5.

[28] Id. (citing TEX. INS. CODE § 541.151).

[29] Menchaca, 2017 WL 1311752, at *7.

[30] Id

[31] Id. (citing Vail v. Texas Farm Bureau Mut. Ins. Co. v. Castaneda, 988 S.W.2d 189, 188 (Tex. 1998).

[32] Menchaca, 2017 WL 1311752, at *10 (emphasis in original).

[33] Id.

[34] Id.

[35] Id. at *11.

[36] Id.. ; see also Twin City Fire Ins. Co. v. Davis, 904 S.W.2d 663, 666 (Tex. 1995) (identifying mental anguish damages as an example).

[37] Menchaca, 2017 WL 1311752, at *11 (emphasis added).

[38] 904 S.W.2d 663, 666 (Tex. 1995) (citing Federal Express Corp. v. Dutschmann, 846 S.W.2d 282, 284 (Tex. 1993) (stating that “[r]ecovery of punitive damages requires a finding of an independent tort with accompanying actual damages.”). Therefore, insurers are not liable for punitive damages if there is not an independent injury resulting in extra-contractual damages.

[39] Menchaca, 2017 WL 1311752, at *12.

[40].Menchaca, 2017 WL 1311752, at *12; Casteneda, 988 S.W.2d at 198.



© Steptoe & Johnson PLLC. All Rights Reserved.
This post was written by Dawn S. Holiday of Steptoe & Johnson PLLC.

The Four Pillars: Trump’s Immigration Plan

In his first State of the Union address, President Trump described four “pillars” to his immigration plan, with mixed reception. The pillars reinforce his campaign slogan to “Buy American, Hire American” and track with the immigration policy priorities he has previously outlined. These priorities include border security, interior enforcement and a merit-based immigration system.

The first two pillars address building a wall along the Southern border as well as a pathway to citizenship for certain undocumented foreign nationals presently in the United States, including about 800,000 young people (Dreamers) who were granted temporary status through the Deferred Action for Childhood Arrivals (DACA) program, now rescinded by President Trump.

The third pillar would end the diversity visa lottery (DV lottery). This program was established by Congress in 1990 and allocates 50,000 green cards to foreign nationals of countries with historically low U.S. immigration rates. Which countries are eligible can vary from year to year based on government-collected statistics as to how many foreign nationals have immigrated from those countries through other non-DV lottery programs. For example, in FY2018, most African countries were eligible, as were most European countries, except Great Britain. Countries that were not eligible included Pakistan, the Philippines, India, Mexico, Brazil, El Salvador, and Peru. The odds of being chosen are poor. Past data reveals about 14.5 million apply annually.

A common misconception, indeed one articulated by President Trump, is that the DV lottery program “randomly hands out green cards without any regard for skill, merit, or the safety of our people”. In fact, however, DV lottery participants must demonstrate that they meet certain educational or skilled work experience requirements in addition to clearing robust government background and security checks. Those selected in the DV lottery must be screened just like any other green card applicant – including family- and employment-based green card applicants. The process is arduous and can take months to complete. Security screenings include biometrics as well as name and fingerprint checks through multiple interagency government databases to identify potential criminal, national security, terrorism, organized crime, gang and other related issues. Applicants also must attend an in-person interview where they are again screened for potential red flags affecting admissibility.

The fourth pillar addresses family-based immigration and would limit it to immediate family members which include spouses and minor children. Referring to “chain migration”, President Trump stated that “a single immigrant can bring in virtually unlimited numbers of distant relatives.” This misconstrues current immigration law. The United States already limits family-based immigration. Family-based green cards are only available to spouses, children, parents and siblings (for U.S. citizens). Grandparents, aunts, uncles, cousins and other extended family members are ineligible. The number of family-based green cards are limited by annual quotas. For example, siblings of U.S. citizens who filed family-based petitions between 1994 and 2004 are only now current. In other words, the wait is long. Furthermore, sponsors of family-based green card applicants must also demonstrate that they have the financial means to support the intended beneficiary by signing a contract with the government agreeing to reimburse for any means-tested public benefit the beneficiary should receive, until the beneficiary has worked 10 years, becomes a US. citizen, dies or leaves the United States permanently.

U.S. immigration law is complex and a challenge to understand for those who aren’t regularly walking its trenches. For those curious about the Administration’s regulatory agenda, is a good place to start. Those interested in learning more about U.S. immigration facts can also access the American Immigration Council’s resources available at https://americanimmigration


Copyright © 2018 Womble Bond Dickinson (US) LLP All Rights Reserved.
This post was written by Jennifer Cory of Womble Bond Dickinson.
More on Immigration at the National Law Review Immigration Page.

Will Facebook’s Recent Announcement of Changes to News Feed Affect Legal Immunities for User Content?

Facebook recently announced that it would make changes to its news feed to prioritize content that users share and discuss and material from “reputable publishers.”  These changes are part of what Mark Zuckerberg says is a refocusing of Facebook from “helping [users] find relevant content to helping [users] have more meaningful social interactions.”  This refocus highlights the tensions between Facebook’s conflicting roles as a social media platform on one hand, and, in effect, a distributor of third party content on the other.  We have discussed this issue in previous posts.

As Facebook implements these newly-announced changes in the way third party content will be presented — focusing on “trusted content” — the operational  models powering Facebook’s use of third party content (user generated and otherwise) will also evolve.  Lawyers should keep an eye on what the changes might mean for Facebook from a liability perspective.   For example, will Facebook’s direct or indirect control of third party content impact its immunity from publisher and distributor liability under Section 230 of the Communication Decency Act? Or, rather will changes to its algorithm to prioritize trusted content still be deemed to be quintessential publisher conduct, and therefore within the scope of Section 230?  Also, to the extent that Facebook directly or indirectly curates third party content, could it possibly lose the benefits afforded by the safe harbors of the Digital Millennium Copyright Act?

Given the fact that the immunities and safe harbors for online service providers are so crucial for the business model of social media platforms such as Facebook, one can be sure that counsel to Facebook will highlight any changes that may call into question the availability of those immunities and safe harbors.  All the same, you can be sure that a creative plaintiff’s lawyer may attempt to use any change where Facebook is somehow more engaged in the curation, display or distribution of third party content to pierce through the CDA/DMCA armor to hold Facebook responsible for allegedly problematic third party content.

© 2018 Proskauer Rose LLP.
This article was written by Jeffrey D Neuburger of Proskauer Rose LLP