Communication Media & Internet Archives - Page 42 of 65

TCPA Consent Medley: Third New Decision Enforcing TCPA Consent Provision in Consumer Agreement Has “Robocallers” Humming

After a long period of quiet on the issue, TCPAland has seen three swift decisions on good-Reyes (Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51 (2d Cir. 2017), as amended (Aug. 21, 2017)) all aligning to enforce contractual TCPA consent provisions. First, Navient scored a big win, but that was within the Second Circuit so it didn’t make much of a stir. But then a real breakthrough: the Chief Judge of the Northern District of Alabama held that TCPA consent provisions in consumer agreements could not be revoked–the first such ruling from within the Eleventh Circuit. And now the trifecta. A court within the Middle District of Florida–seemingly the most consumer-friendly TCPA jurisdiction in the country as of late– granted summary judgment on a TCPA claim to a Defendant today holding that a consumer cannot stop robocalls after agreeing to receive such calls as a term in a written contract.

Woah.

The case is Medley v. Dish Network, Case No. 8:16-cv-2534-T-36TBM, 2018 U.S. Dist. LEXIS 144895 (M.D. Fl. Aug. 27, 2018) and it represents the first decision out of the Middle District of Florida to apply Good Reyes and hold that TCPA consent is irrevocable in certain circumstances. As shown below, Medley took no prisoners in distinguishing and declining to follow decisions that had held otherwise.

After first determining that the contractual consent provisions survived Plaintiff’s bankruptcy discharge because Medley failed to include her debt to Dish on its schedules, the Court deftly articulated the governing rule of Good Reyes as follows:

“Although voluntary and gratuitous consent could be revoked under the common law, which was recognized by the Eleventh Circuit in Osorio, the Second Circuit explained that consent could ‘become irrevocable when it is provided in a legally binding agreement, in which case any attempted termination is not effective.’”

Medley at *29

The Medley court next tips its hat to the decision in Few, citing the Northern District of Alabama decision for the proposition that where a “plaintiff g[i]ve[s] consent to be called ‘as part of a bargained-for exchange and not merely gratuitously, she was unable to unilaterally revoke that consent’” (Medley at *30) before remarking simply: “This Court agrees.” Id.

The Court goes on to find that “it is black-letter contract law that one party to an agreement cannot, without the other party’s consent, unilaterally modify the agreement once it has been executed” and “[n]othing in the TCPA indicates that contractually-granted consent can be unilaterally revoked in contradiction to black-letter law.” Medley at *30. How sweet is that?

The Medley court also distinguished Gager v. Dell Financial Services, LLC, 727
F.3d 265, 270-71 (3d Cir. 2013), Target National Bank v. Welch, No. 8:15-cv-614-T-36, 2016 WL 1157043 (M.D. Fla. Mar. 24, 2016) and Patterson v. AllyFinancial, Inc., No. 3:16-cv1592-
J-32-JBT, 2018 WL 647438 (M.D. Fla. Jan. 31, 2018) as cases involving application consents and opposed to contractual consent provisions. Medley also noted that the consent clause in Patterson did not apply to the type of calls being made in that case, a rather solid basis to distinguish and decline to follow the decision.

The Court also takes issue with the reasoning in Ammons v. Ally Financial, Inc.,
No. 3:17-cv-00505, 2018 WL 3134619 (M.D. Tenn. June 27, 2018)–refusing to apply Good Reyes despite contractual consent terms in an automotive finance agreement–and declines to follow it. In Medley’s view Ammons over reads Osorio and under analyzes Patterson and Welch.

Accordingly the court concludes that Defendant is entitled to summary judgment and sums up matters succinctly in this clean-as-a-whistle conclusion:

“[T]he Court finds that in the absence of a statement by Congress that the TCPA alters the common-law notion that consent cannot be unilaterally revoked where given as part of a bargained for contract, the Court will decline to do so.”

Medley at *36.

Notably, as was the case in Harris, the contract in Medley did not include a revocation provision and was simply silent on the issue of whether consent could be revoked. As in Harris the Medley court–correctly–interpreted that silence to mean that consent could not be revoked at all.

Since many will ask, Medley was decided by the Hon. Charlene Honeywell who is no stranger to TCPA claimants appearing before her. With Medley she as certainly made her TCPAland mark.

And with Few and Medley working in their favor Defendants seeking to enforce contractual TCPA consent provisions suddenly have a lot to be optimistic about. But this is TCPAland and, in the words of the Grand Duchess, its best to never get too comfortable.

ARTICLE BY

Eric Troutman

Womble Bond Dickinson (US) LLP

Treasury Releases Report on Nonbank Institutions, Fintech, and Innovation

On July 31, 2018, the U.S. Department of the Treasury released a reportidentifying numerous recommendations intended to promote constructive activities by nonbank financial institutions, embrace financial technology (“fintech”), and encourage innovation.

This is the fourth and final report issued by Treasury pursuant to Executive Order 13772, which established certain Core Principles designed to inform the manner in which the Trump Administration regulates the U.S. financial system. Among other things, the Core Principles include: (i) empower Americans to make independent financial decisions and informed choices; (ii) prevent taxpayer-funded bailouts; (iii) foster economic growth and vibrant financial markets through more rigorous regulatory impact analysis; (iv) make regulation efficient, effective, and appropriately tailored; and (v) restore public accountability within federal financial regulatory agencies and rationalize the federal financial regulatory framework.

Treasury’s lengthy report contains over 80 recommendations, which are summarized in an appendix to the report. The recommendations generally fall into four categories: (i) adapting regulatory approaches to promote the efficient and responsible aggregation, sharing, and use of consumer financial data and the development of key competitive technologies; (ii) aligning the regulatory environment to combat unnecessary regulatory fragmentation and account for new fintech business models; (iii) updating a range of activity-specific regulations to accommodate technological advances and products and services offered by nonbank firms; and (iv) facilitating experimentation in the financial sector.

Some notable recommendations include:

Embracing Digitization, Data, and Technology

TCPA Revisions: Recommending that Congress and the Federal Communications Commission amend or provide guidance on the Telephone Consumer Protection Act to address unwanted calls and revocation of consent.
Consumer Access to Financial Data: Recommending that the Bureau of Consumer Financial Protection (“BCFP”) develop best practices or principles-based rules to promote consumer access to financial data through data aggregators and other third parties.
Data Aggregation: Recommending that various agencies eliminate legal and regulatory uncertainties so that data aggregators can move away from screen scraping to more secure and efficient methods of access.
Data Security and Breach Notification: Recommending that Congress enact a federal data security and breach notification law to protect consumer financial data and notify consumers of a breach in a timely manner, with uniform national standards that preempt state laws.
Digital Legal Identity: Recommending efforts by financial regulators and the Office of Management and Budget to enhance public-private partnerships that facilitate the adoption of trustworthy digital legal identity products and services and support full implementation of a U.S. government federated digital identity system.
Cloud Technologies, Artificial Intelligence, and Financial Services: Recommending that regulators modernize regulations and guidance to avoid imposing obstacles on the use of cloud computing, artificial intelligence, and machine learning technologies in financial services, and to provide greater regulatory clarity that would enable further testing and responsible deployment of these technologies by financial services firms as these technologies evolve.

Aligning the Regulatory Framework to Promote Innovation

Harmonization of State Licensing Laws: Encouraging efforts by state regulators to develop a more unified licensing regime, particularly for money transmission and lending, and to coordinate supervisory processes across the states, and recommending Congressional action if meaningful harmonization is not achieved within three years.
OCC Fintech Charter: Recommending that the Office of the Comptroller of the Currency move forward with a special purpose national bank charter for fintech companies.
Bank-Nonbank Partnerships: Recommending banking regulators tailor and clarify regulatory guidance regarding bank partnerships with nonbank firms.

Updating Activity-Specific Regulations

Codification of “Valid When Made” and True Lender Doctrines: Recommending that Congress codify the “valid when made” doctrine and the legal status of a bank as the “true lender” of loans it originates but then places with a nonbank partner, and that federal banking regulators use their authorities to affirm these doctrines.
Encouraging Small-Dollar Lending: Recommending that the BCFP rescind its Small-Dollar Lending Rule and that federal and state financial regulators encourage sustainable and responsible short-term, small-dollar installment lending by banks.
Adoption of Debt Collection Rules: Recommending that the BCFP promulgate regulations under the Fair Debt Collection Practices Act to establish federal standards governing third-party debt collection, including standards that address the reasonable use of digital communications in debt collection activities.
Promote Experimentation with New Credit Models and Data: Recommending that regulators support and provide clarity to enable the testing and experimentation of newer credit models and data sources by banks and nonbank financial firms.
Regulation of Credit Bureaus: Recommending that the Federal Trade Commission and other relevant regulators take necessary actions to protect consumer data held by credit reporting agencies and that Congress assess whether further authority is needed in this area.
Regulation of Payments: Recommending that the Federal Reserve act to facilitate a faster payments system, as well as changes to the BCFP’s remittance transfer rule.

Enabling the Policy Environment

Regulatory Sandboxes: Recommending that federal and state regulators design a unified system to provide expedited regulatory relief and permit meaningful experimentation for innovative financial products, services, and processes, essentially creating a “regulatory sandbox.”
Technology Research Projects: Recommending that Congress authorize financial regulators to undertake research and development and proof-of-concept technology partnerships with the private sector.
Cybersecurity and Operational Risks: Recommending that financial regulators consider cybersecurity and other operational risks as new technologies are implemented, firms become increasingly interconnected, and consumer data are shared among a growing number of third parties.

Weiss Nusraty

David A. Stein

Covington & Burling LLP

Can I Secure a Loan with Bitcoin? Part I

Each day seems to bring another story about Bitcoin, Ethereum, Litecoin, or another virtual currency. If virtual currencies continue to grow in popularity, it’s only a matter of time before borrowers offer to pledge virtual currency as collateral for loans. This article does not advise lenders on whether they should secure loans with virtual currency, but instead it focuses on whether a lender can use the familiar tools of Article 9 of the Uniform Commercial Code (“UCC”) to create and perfect a security interest in bitcoin. (In this article, “bitcoin” is used as a generic term for all virtual currencies.)

Article 9 Basics

Article 9 allows a creditor to create a security interest in personal property. The owner of the property grants the creditor a security interest through a written security agreement. The security agreement creates the security interest between the secured party and the debtor. The secured party must then “perfect” the security interest to obtain lien priority over third parties and to protect its secured status should the debtor file bankruptcy.

Security interests are perfected in different ways depending on the type of collateral. Article 9 divides personal property into different categories, such as goods, equipment, inventory, accounts, money, and intangibles. The primary ways to perfect a security interest are (1) filing, with the appropriate filing agency, a UCC-1 financing statement containing a sufficient description of the collateral, (2) possession, or (3) control.

Bitcoin and Blockchain

Virtual currencies are electronic representations of value that may not have an equivalent value in a real government-backed currency. They can be used as a payment system, or digital currency, without an intermediary like a bank or credit card company. While virtual currencies can function like real currencies in certain transactions, and certain virtual currencies can be exchanged into real currencies, a virtual currency itself does not have legal tender status. Virtual currency is virtual—there is no bitcoin equivalent to a quarter or dollar bill.

Bitcoin operates on a protocol that uses distributed-ledger technology. This technology is called the blockchain. The blockchain eliminates the need for intermediaries such as banks. Unlike a dollar, which is interchangeable, each bitcoin is unique. The blockchain records all bitcoin transactions to prevent someone from re-spending the same bitcoin over and over.

Suppose you wanted to transfer cash to a friend. You could transfer funds from your bank account to her bank account. The banks act as intermediaries. Suppose you wanted to transfer cash to that same friend without a middle man. The only way to do that is meet her and hand over the cash. This exchange many not be practical for many reasons. You might live far from each other. Even if you’re near each other, you might not want to travel around town with a briefcase full of cash. Bitcoin and blockchain technology allow the transfer of cash directly and digitally without a middle man.

The blockchain is both transparent and opaque. It is transparent as to the ownership chain of every bitcoin. In this way, it is easier to “trace” a bitcoin than to trace cash. But the blockchain presently does not show liens on bitcoin. So a secured party can confirm if a borrower owns bitcoin, but not if the borrower or a previous owner encumbered the bitcoin.

Is Bitcoin Money?

At first glance, bitcoin would seem to fall in the category of “money.” Article 9 defines money as a medium of exchange authorized or adopted by a domestic or foreign government. No government has adopted bitcoin as a medium of exchange. Dollars, euros, and pounds meet the definition of money—bitcoin does not. Therefore, bitcoin does not meet the definition of money. And a secured party perfects its security interest in money by physical possession, but because bitcoin is virtual, physical possession is impossible.

Is Bitcoin a Deposit Account?

A deposit account is a demand, time, savings, passbook, or similar account maintained with a bank. With a traditional deposit account, the secured party perfects its security interest by having “control” over that account. This is usually accomplished when the debtor, the debtor’s bank, and the secured party execute a deposit account control agreement. If the debtor defaults, the secured party can direct the debtor’s bank to transfer the funds from the account.

Bitcoin often is stored in a digital wallet with an exchange like Coinbase. The wallet is access-restricted by private keys or passwords, but that wallet is not a deposit account. The bitcoin itself is held by its owner on the blockchain, which is decentralized. Unlike a deposit account, there is no intermediary like a bank. With no intermediary, there is no way to establish “control” over the bitcoin. Consequently, bitcoin does not meet the definition of a deposit account.

Bitcoin is (Probably) a General Intangible

By process of elimination, bitcoin should be treated as a general intangible. A general intangible is personal property that does not fall into any other Article 9 category. A lender perfects a security interest in general intangibles by filing a UCC-1 financing statement. In North Carolina, you file it with the Secretary of State.

Although we can categorize bitcoin as a general intangible for Article 9 purposes, and create and perfect a security interest accordingly, several issues arise that question the overall effectiveness of that security interest. For starters, a security interest in general intangibles follows the sale, license, or other disposition of the collateral, unless the secured party consents to the transfer free of its security interest, the obligations secured by the security interest have been satisfied, or the security interest has otherwise terminated.

This is a problem for the lender wanting a first-priority lien on the bitcoin. Before approaching the lender, the borrower may have granted a secured party a security interest in bitcoin, or granted a security interest in “all assets whether now owned or acquired later” and then acquired bitcoin. In both instances, the bitcoin is encumbered by the security interest. The lender could not confirm prior liens without searching UCC-1 filings in all 50 states (and even that might not catch international liens).

Even if a secured party acquires a senior lien in bitcoin, that party still has the problem of lack of control over the bitcoin. Without control, bitcoin collateral is susceptible to unauthorized transfers. Even if a borrower has an account at an online currency exchange like Coinbase—which allows you to exchange bitcoin into traditional money—the exchange may be unwilling to sign a tri-party control agreement to restrict the debtor’s ability to exchange the bitcoin. Upon default, without the debtor’s cooperation, it will be difficult or impossible to enforce, take possession, and liquidate the bitcoin.

Conclusion

Putting aside its value and volatility, the intrinsically unique nature of bitcoin makes it an imperfect and problematic form of collateral under Article 9. Part II of this article will discuss the pros and cons of using Article 8 of the UCC to create and perfect a security interest in bitcoin. Article 8 has the potential to be a safer and more reliable solution for these transactions.

This post was written by Lance P. Martin of Ward and Smith, P.A.

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.

Jenna Moran and Matthew S. Arend and Sydney N. Pahren of Dinsmore & Shohl LLP.

Uber Hack – Don’t Tell Anyone!

It’s been revealed that Uber’s database has been hacked, with the personal information of more than 57 million users and drivers worldwide compromised. That’s a big number, but we are becoming increasingly numb to this kind of revelation, with all the cyber-leaks now making the news. What was the more astounding aspect of this particular incident is the fact it has taken Uber over a year to reveal the security breach – with the attack taking place in October 2016.

Uber says that the hackers were able to download files containing information including the names and driver’s licence numbers of 600,000 drivers in the US, as well as the names, email addresses and phone numbers of millions of users worldwide.

Although Uber has now taken steps to notify the drivers affected by the hack, it’s reported that at the time of the breach, the company paid the hackers USD100,000 to delete the stolen data, and not reveal the breach.

In a statement, Uber CEO Dara Khosrowshani admitted that he became aware of the “inappropriate access [of] user data stored on a third-party cloud-based service” late last year, and that steps were taken to secure the data, and shut down further unauthorised access. However, Mr Khosrowshani noted he has no excuse as to why the massive breach is only being made public now.

For their roles in the cover-up, Uber chief security officer Joe Sullivan and his deputy have been ousted, while Uber says it’s taking “several actions”, including consulting the former general counsel of the US’ National Security Agency to prevent a future data breach.

For more legal analysis, go to The National Law Review

Elder Abuse: Are Granny Cams a Solution, a Compliance Burden, or Both?

In Minnesota, 97% of the 25,226 allegations of elder abuse (neglect, physical abuse, unexplained serious injuries and thefts) in state-licensed senior facilities in 2016 were never investigated. This prompted Minnesota Governor, Mark Dayton, to announce plans last week to form a task force to find out why. As one might expect, Minnesota is not alone. A studypublished in 2011 found that an estimated 260,000 (1 in 13) older adults in New York had been victims of one form of abuse or another during a 12-month period between 2008 and 2009, with “a dramatic gap” between elder abuse events reported and the number of cases referred to formal elder abuse services. Clearly, states are struggling to protect a vulnerable and growing group of residents from abuse. Technologies such as hidden cameras may help to address the problem, but their use raises privacy, security, compliance, and other concerns.

With governmental agencies apparently lacking the resources to identify, investigate, and respond to mounting cases of elder abuse in the long-term care services industry, and the number of persons in need of long-term care services on the rise, this problem is likely to get worse before it gets better. According to a 2016 CDC report concerning users of long-term care services, more than 9 million people in the United States receive regulated long-term care services. These numbers are only expected to increase. The Family Caregiver Alliance reports that

by 2050, the number of individuals using paid long-term care services in any setting (e.g., at home, residential care such as assisted living, or skilled nursing facilities) will likely double from the 13 million using services in 2000, to 27 million people.

However, technologies such as hidden cameras are making it easier for families and others to step in and help protect their loved ones. In fact, some states are implementing measures to leverage these technologies to help address the problem of elder abuse. For example, New Jersey’s Attorney General recently expanded the “Safe Care Cam” program which lends cameras and memory cards to Garden State residents who suspect their loved ones may be victims of abuse by an in-home caregiver.

Common known as “granny cams,” these easy-to-hide devices which can record video and sometimes audio are being strategically placed in nursing homes, long-term care, and residential care facilities. For example, the “Charge Cam” (pictured above) is designed to look like and actually function as a plug used to charge smartphone devices. Once plugged in, it is able to record eight hours of video and sound. For a nursing home resident’s family concerned about the treatment of the resident, use of a “Charge Cam” or similar device could be a very helpful way of getting answers to their suspicions of abuse. However, for the unsuspecting nursing home or other residential or long-term care facility, as well as for the well-meaning family members, the use of these devices can pose a number of issues and potential risks. Here are just some questions that should be considered:

Is there a state law that specifically addresses “granny cams”? Note that at least five states (Illinois, New Mexico, Oklahoma, Texas, and Washington) have laws specifically addressing the use of cameras in this context. In Illinois, for example, the resident and the resident’s roommate must consent to the camera, and notice must be posted outside the resident’s room to alert those entering the room about the recording.
Is consent required from all of the parties to conversations that are recorded by the device?
Do the HIPAA privacy and security regulations apply to the video and audio recordings that contain individually identifiable health information of the resident or other residents whose information is captured in the video or audio recorded?
How do the features of the device, such as camera placement and zoom capabilities, affect the analysis of the issues raised above?
How can the validity of a recording be confirmed?
What effects will there be on employee recruiting and employee retention?
If the organization permits the device to be installed, what rights and obligations does it have with respect to the scope, content, security, preservation, and other aspects of the recording?

Just as body cameras for police are viewed by some as a way to help address concerns over police brutality allegations, some believe granny cams can serve as a deterrent to abuse of residents at long-term care and similar facilities. However, families and facilities have to consider these technologies carefully.

For more legal analysis, go to The National Law Review

Automotive Supplier Industry Experts Convene in Detroit and Share 2018 Outlook

The Original Equipment Suppliers Association (OESA) held its 19^th Annual Conference this week in suburban Detroit under the theme: “The Industry’s New Landscape.” And while much of the day was devoted to autonomous vehicle developments and the potential negative impacts on the industry’s North American competitiveness that would result from substantial changes to NAFTA, the afternoon session included a robust discussion of today’s strong market in North America and the more guarded outlook for 2018 and beyond.

During this session, Mike Jackson, Executive Director of Strategy and Research for the OESA moderated a panel called “Cycle Dynamics: The Industry Outlook Panel,” comprised of a leading automotive forecaster, a leading Wall Street analyst and the lead economist for one of the world’s largest OEMs. While the panel remained fairly optimistic about the near term, the longer term theme was that the automotive industry is cyclical and the next down cycle is SOMEWHERE OUT THERE …

The panelists included Dr. G. Mustafa Mohatarem, Chief Economist, General Motors; John Murphy, Managing Director, U.S. Autos Equity Research, Bank of America Merrill Lynch; and Michael Robinet, Managing Director, Automotive Advisory Services, IHS Markit.

Dr. Mohatarem began with a very optimistic evaluation of the global economy, referring to our current condition as a “global synchronous expansion.” Not only is the U.S. economy strong, but China’s growth has exceeded recent expectations, the EU has experienced a mini-boom after dodging a debt crisis, India continues to grow steadily and Russia and Brazil’s recessions have ended. He noted that the current U.S. production rate is 17.4 -17.5 million units for 2017, a healthy market if not quite as healthy as last year. On the cautionary side, he noted a potentially more hawkish bent to Fed policy and a significant labor shortage that will continue to dog the U.S. automotive industry. On the whole though, he noted: “this is a very favorable time for the global automotive industry.”

Mike Robinet summed up current supplier sentiment as follows: suppliers see the demand and the market opportunities out there, but there will be a lot of disruptors that can derail them. These disruptors include the impact of “ACES” (Autonomous, Connected, Electrifiedand Shared), the emergence of “Super Tier 1’s” who may dominate the future landscape with their integration capabilities (leaving other suppliers behind potentially), shifting trade winds, indecision about U.S. regulatory policy including CAFÉ standards, and an acceleration of the planning cycle that creates execution risk. He noted that the cadence of model changes has kept the supply base on its toes this year, as has the adjustment to the continuing decline in sedan sales (which was viewed by the panel as a continuing trend into the future). Will the internal combustion engine disappear soon? According to Robinet, 95% of the vehicles in North America will have an engine on board by 2025. Places like China will see a faster adoption of EVs during this period, he noted, including as a result of government policies promoting them. He ended by cautioning suppliers not to focus too much on the “nirvana” of Level 5 autonomy, but rather to focus on the movement to Level 3 and 4 in the shorter term and try to find there place in those realms.

John Murphy, more bullish in recent times, conceded that he has “moderated his outlook a bit.” Murphy noted that leasing is helping support current demand, but worries about the upcoming impacts on the used car market as those vehicles come off lease (which he referred to as a “tsunami” that will hit in 2018 and beyond). He noted that vehicle pricing is also starting to moderate (unrelated to just mix), and that the CUV market is getting very crowded. He described three “Big Bangs” that will shape the industry in the future: The increase in the Efficiency of Travel (cost per mile), the impact of Autonomous Mobility On Demand on the ease and cost of travel, and the increase in Speed of Travel. Only the latter will provide a material economic stimulus – the first two will provide only a marginal or moderate stimulus – but all three Big Bangs will significantly impact the automotive industry. But, before these Big Bangs reach their full impact, Murphy sees a downturn within the next two years taking U.S. volume down below the 14 million unit level (compared to the miserable 9 million level reached during the Great Recession). During the Q&A session that followed, Murphy noted that he expects EV penetration in the U.S. to reach 10% by 2025 (slightly more optimistic than Mike Robinet’s prediction). He also noted his perception that we are not experiencing an auto technology valuation bubble despite the recent eye-popping valuations in this space (no irrational exuberance here!).

On the whole, the panel’s 2018 and beyond outlook is for an automotive supply industry in North America that continues to be good, with significant challenges and disruptors that must be overcome by those automotive suppliers who will flourish in the long term.

For more Public Services, Infrastructure & Transportation legal analysis, go to The National Law Review

5 Business Communication Etiquette Pet Peeves

I frequently work with my children to help them understand the importance of good table manners – elbows off the table, how to set a table, which fork to use, how to hold a fork and knife (and properly use them), which glass to drink from, and to never chew with their mouths open. Let’s just say it is a work in progress.

While these lessons seem obvious, you would be surprised how frequently we get requests for etiquette training for lawyers. But it’s a fact that how we present ourselves has a significant impact on our brand. If you are seated next to a lawyer who slurps his soup, uses the wrong fork and drinks from your water glass, how likely are you to hire him?

Like our table manners, our communication etiquette sometimes needs attention, too. After all, good relationships begin with good communication. As a communications professional, here are my five biggest communication pet peeves:

Email Signatures: It is a best practice to include your telephone number in your email signature, even on the reply. In this day and age, a majority of our business is conducted without ever hearing someone’s voice. Sometimes, though, actually talking is the best way to communicate, and it is terribly frustrating to have to go digging through old emails, files and even paper notebooks to find a phone number.

If your law firm doesn’t already have a standard email signature protocol, now is the time to institute it. Use it as a way to market your law firm, being mindful not to overwhelm readers with too many ways to reach you. If you are including a graphic, make sure recipients can view it on a mobile device and that it does not make an email too large to open. Your clients will thank you!

Grammar & Spelling: They’re/their, who’s/whose, you’re/your, it’s/its. Learn it, live it, love it. Sure, we all can make mistakes when using our smartphones and blame them on autocorrect, but there are some basic grammar rules that we as legal industry professionals should know.

In addition, try to tighten up your sentences. For example, “I thought I would connect with Jane to discuss,” can be rewritten as “I am going to call Jane to discuss,” or “Jane and I are going to discuss.” To put it concisely, be direct.

And take the time to ensure that you do not have any spelling errors. Readers will automatically assume the worst of you – and your intellect – if you misspell words. Spellcheck is not always accurate, so proofread your work. If you are not a great proofreader yourself, enlist the help of a colleague or a professional proofreader before you send documents to clients. With emails, take a few extra seconds before clicking send.

Limit the Word “Just”: In the spirit of being direct, I want to share my dislike of the word “just.” Improper use of the word often weakens what you are communicating and implies an unspoken apology. I am certainly guilty of using it and am consciously trying to eliminate it from my vocabulary. For example, “I am just following up” suggests that I am sorry to bother you but have something that I think is important to say. “I just have to say” implies that what you have to say is somehow a side note.

Try eliminating the word “just” when you are asking someone to do something for you as well. “Can you just…” minimizes a person’s contributions. Count how many times you use the word “just” in a day, and see if eliminating it helps you become a stronger communicator.

“At Your Earliest Convenience”: Be careful with this term because, when used the wrong way, it makes you seem lazy and unengaged. It is perfectly fine to ask someone to respond at their earliest convenience, but how do you feel when I tell you that I will call you back at my earliest convenience? Probably like I will get to you after I drink my coffee and check social media. For most law firm marketers, your “clients” are the attorneys in your firm. They are your most important asset. Make them feel that way, and avoid telling them that you will do something when it is convenient for you. Try “as soon as possible” instead. It feels much better!
Emphasize Sparingly: When I receive an email that is filled with bold, underlined and all-caps words, I FEEL LIKE I AM BEING YELLED AT and that whatever isn’t emphasized probably isn’t important! Think about what you are emphasizing. Is it really crucial? As a general rule of thumb, focus on headers and deadlines to make sure that all of the content of your email is properly read and understood. Then think about using the signature at the bottom of the email to give the person a way to call to confirm.

All of the ways we present ourselves and communicate – both directly and indirectly – impact our personal brands. Making yourself available and easy to communicate with will boost your personal brand, make people feel good about doing business with you, and hopefully drive more business.

For more legal analysis, go to The National Law Review

Can They Really Do That?

Effective October 18, 2017, the U.S. Department of Homeland Security (DHS), U.S. Citizenship & Immigration Services (USCIS), Immigration & Customs Enforcement (ICE), Customs & Border Protection (CBP), Index, and National File Tracking System of Records, implemented new or modified uses of information maintained on individuals as they pass through the immigration process.

The new regulation updates the categories of individuals covered, to include: individuals acting as legal guardians or designated representatives in immigration proceedings involving an individual who is physically or developmentally disabled or severely mentally impaired (when authorized); Civil Surgeons who conduct and certify medical examinations for immigration benefits; law enforcement officers who certify a benefit requestor’s cooperation in the investigation or prosecution of a criminal activity; and interpreters.

It also expands the categories of records to include: country of nationality; country of residence; the USCIS Online Account Number; social media handles, aliases, associated identifiable information, and search results; and EOIR and BIA proceedings information.

The new regulation also includes updated record source categories to include: publicly available information obtained from the internet; public records; public institutions; interviewees; commercial data providers; and information With this latest expansion of data allowed to be collected, it begs the question: How does one protect sensitive data housed on electronic devices? In addition to inspecting all persons, baggage and merchandise at a port-of-entry, CBP does indeed have the authority to search electronic devices too. CBP’s stance is that consent is not required for such a search. This position is supported by the U.S. Supreme Court, which has determined that such border searches constitute reasonable searches; and therefore, do not run afoul of the Fourth Amendment.

Despite this broad license afforded CBP at the port-of-entry, CBP’s authority is checked somewhat in that such searches do not include information located solely in the cloud. Information subject to search must be physically stored on the device in order to be accessible at the port-of-entry. Additionally, examination of attorney-client privileged communications contained on electronic devices first requires CBP’s consultation with Associate/Assistant Chief Counsel of the U.S. Attorney’s Office.

So what may one do to prevent seizure of an electronic device or avoid disclosure of confidential data to CBP during a border search? The New York and Canadian Bar Associations have compiled the following recommendations:

Consider carrying a temporary or travel laptop cleansed of sensitive local documents and information. Access data through a VPN connection or cloud-based warehousing.
Consider carrying temporary mobile devices stripped of contacts and other confidential information. Have calls forwarded from your office number to the unpublished mobile number when traveling.
Back up data and shut down your electronic device well before reaching the inspection area to eliminate access to Random Access Memory.
Use an alternate account to hold sensitive information. Apply strong encryption and complex passwords.
Partition and encrypt the hard drive.
Protect the data port.
Clean your electronic device(s) following return.
Wipe smartphones remotely.

For more Immigration legal analysis, go to The National Law Review

Citing Failure to Cooperate, Court Orders Use of Specific Keyword Search Terms

United States v. New Mexico State Univ., No. 1:16-cv-00911-JAP-LF, 2017 WL 4386358 (D.N.M. Sept. 29, 2017)

In this pay discrimination case, the Court addressed Defendants’ motion for a protective order precluding further searching for responsive documents. Citing defense counsel’s failure to “adequately confer” before performing the initial searches, “which resulted in searches that were inadequate to reveal all responsive documents,” the Court concluded that “which searches will be conducted is left to the Court” and went on to order Defendants to conduct additional searches with specific terms, many of which were proposed by the plaintiff.

Plaintiff alleged that Defendants payed a female employee less than they were paying her male counterparts, despite similar responsibilities in the track and field program, and sought, broadly speaking, production of documents reflecting communications regarding her compensation; production of documents regarding her complaints concerning pay; and production of documents regarding any other complaints of pay discrimination made by other coaches, trainers, etc. Without adequately cooperating with the plaintiff, Defendants performed “more than 20” keyword searches and produced “more than 14,000 pages of documents.” When Plaintiff indicated concern regarding the adequacy of Defendants’ searching, the parties were unable to resolve their dispute and Defendants ultimately moved for a protective order. Defendants argued that the discovery sought was not proportional to the needs of the case, noting the efforts already undertaken. Plaintiff disagreed.

Indicating that this case presented “the question of how parties should search and produce [ESI] in response to discovery requests,” the Court reminded the parties that “[t]he best solution in the entire area of electronic discovery is cooperation among counsel” and that “[c]ooperation prevents lawyers designing keyword searches ‘in the dark, by the seat of the pants,’ without adequate discussion with each other to determine which words would yield the most responsive results.” In the present case, the Court concluded that the failure to confer resulted in inadequate searches and, acknowledging Plaintiff’s argument that “[Defendant] alone is responsible for its illogical choices in constructing searches” indicated that, “which searches will be conducted is left to the Court.”

As promised, the Court went on to discuss the three disputed discovery requests and identified specific search terms and custodians to be searched, many of which were proposed by the plaintiff. The Court also instructed the parties to work together to the extent necessary, if the non-responsive documents returned were too voluminous, for example.

The Court ended the opinion by returning to the topic of cooperation:

Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. Moreover, where counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from the ESI’s custodians as to the words and abbreviations they use, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of “false positives.” It is time that the Bar—even those lawyers who did not come of age in the computer era—understand this.

[Citation omitted.]

A copy of the Court’s order is available here.

For more legal analysis go to The National Law Review

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