This past year, we have seen the Patent Trial and Appeal Board (PTAB) designate a number of decisions as precedential and informative more so than in past years. This is directly a result of the USPTO’s revised Standard Operating Procedure 2 (SOP2). On September 20, 2018, the USPTO announced that Board decisions can now be designated as precedential or informative through either one of two tracks: (1) POP Review or (2) a “ratification” process.
Under both tracks, a newly formed Precedential Opinion Panel (POP) comprising of at least three members will decide whether the decision should be designated as precedential or informative. Members of the POP will be selected by the Director and, by default, will comprise the Director, the Commissioner of Patents and the Chief Judge. The three members of the POP may each decide to delegate their authority in certain circumstances.
POP Review
POP Review under the first track is a rehearing of an issue in a pending trial. A party to a proceeding or any other member of the Board may recommend POP review—or a rehearing—of a particular Board decision. The request for POP review should be limited to situations where the Board decides issues of exceptional importance involving policy or procedure. A screening committee will review the recommendations and forward its recommendations to the Director. The Director will then convene with the POP to decide whether to grant rehearing, and if rehearing is granted, to render a decision on rehearing of the case.
If POP review is ordered, the Order will identify the issues the POP intends to resolve, may request additional briefing from the parties and, in some cases, may authorize amicus briefs. The POP may also order, at its discretion, an oral hearing. The decision resulting from POP Review will then be designated precedential, informative, or “routine.”
At this time, only two decisions have been issued by the newly formed POP:
Proppant Express Investments, LLC v. Oren Techs., LLC, Case IPR2018-00914, Paper 38 (Mar. 13, 2019) (designated: Mar. 13, 2019)
GoPro, Inc. v. 360Heros, Inc., Case IPR2018-01754, Paper 38 (Aug. 23, 2019) (designated: Aug. 23, 2019)
Please see my latest blog post on the GoPro decision regarding the one-year time bar under 35 U.S.C. § 315(b).
To request POP review, a party to the proceeding must submit a request by email to Precedential_Opinion_Panel_Request@uspto.gov. The email must identify with particularity the reasons for recommending POP review along with a request for rehearing filed with the Board under 37 C.F.R. § 41.52(a) or 42.71(d). In addition, counsel must also include a statement that the Board’s decision for which rehearing is requested was contrary to law or is a question of exceptional importance.
“Ratification” process
Under the second track, the public may nominate already issued decisions to be designated precedential or informative. Under this track, the Board is relying on the public to recognize which decisions are valuable to post-grant practice. This is the more traditional path for which a decision may be designated as precedential or informative. In this past year, there have been more than a dozen decisions that have been designated as precedential or informative through this ratification process. As above, a screening committee will review the recommendations and the Director will then convene with the POP to decide whether to designate the decision as precedential or informative.
Nominations should be submitted by email to PTAB_Decision_Nomination@uspto.gov and must set forth with particularity the reasons for the requested designation.
To learn more about the process under either track described above, I recommend reviewing the revised Standard Operating Procedure 2 (SOP2) online which provides the detailed procedural requirements for nominating a decision as precedential or informative.
The settlements offer numerous takeaways, including reminders to those that use persistent identifiers to track children online and deliver them targeted ads. These takeaways include, but are not limited to the following.
FTC CID attorney Joseph Simons stated that “YouTube touted its popularity with children to prospective corporate clients … yet when it came to complying with COPPA, the company refused to acknowledge that portions of its platform were clearly directed to kids.”
First, under COPPA, a child-directed website or online service – or a site that has actual knowledge it’s collecting or maintaining personal information from a child – must give clear notice on its site of “what information it collects from children, how it uses such information and its disclosure practices for such information.”
Second, the website or service must give direct notice to parents of their practices “with regard to the collection, use, or disclosure of personal information from children.”
Third, prior to collecting personal information from children under 13, COPPA-covered companies must get verifiable parental consent.
COPPA’s definition of “personal information” specifically includes persistent identifiers used for behavioral advertising. It is critical to note that third-party platforms are subject to COPPA when they have actual knowledge they are collecting personal information from users of a child-directed website.
In March 2019, the FTC handed down what, then, was the largest civil penalty ever for violations of COPPA following allegations that Musical.ly knew many of its users were children and still failed to seek parental consent. There, the FTC charged that Musical.ly failed to provide notice on their website of the information they collect online from children, how they use it and their disclosure practices; failed to provide direct notice to parents; failed to obtain consent from parents before collecting personal information from children; failed to honor parents’ requests to delete personal information collected from children; and retained personal information for longer than reasonably necessary.
Content creators must know COPPA’s requirements.
If a platform hosting third-party content knows that content is directed to children, it is unlawful to collect personal information from viewers without getting verifiable parental consent.
While it may be fine for most commercial websites geared to a general audience to include a corner for children, it that portion of the website collects information from users, COPPA obligations are triggered.
Comprehensive COPPA policies and procedures to protect children’s privacy are a good idea. As are competent oversight, COPPA training for relevant personnel, the identification of risks that could result in violations of COPPA, the design and implementation of reasonable controls to address the identified risks, the regular monitoring of the effectiveness of those controls, and the development and use of reasonable steps to select and retain service providers that can comply with COPPA.
The FTC and the New York Attorney General are serious about COPPA enforcement. Companies should exercise caution with respect to such data collection practices.
Student loan borrowers commonly wonder whether they should refinance federal loans into private loans. There are many factors to consider in the case of federal loans, such as interest subsidies and possible forgiveness (but often with income tax consequences) paired with interest rates that are often lower in the case of private loans. Knowing the differences between federal and private student loans is imperative when making this decision.
Most notably, federal student loans are generally forgiven upon death whereas private lenders will pursue an estate for amounts owed by deceased borrowers.
Before refinancing your federal student loans into private ones, consider the cost of the extra life insurance you will need to purchase to cover the debt and, if you have already refinanced, be sure that your insurance coverage is adequate so that amounts intended for your family do not instead pay back creditors. When planning for federal student loan forgiveness, do not forget to account for any associated cancellation of debt income and purchase adequate insurance to cover the anticipated tax burden. The income tax on cancellation of debt income regarding federal student loans forgiven due to death was eliminated by the 2017 Tax Cuts and Jobs Act but this change is set to expire at the end of 2025 unless extended by Congress.
Similarly, consider any federal interest subsidies that may be available before refinancing. In some cases, the offset of the federal interest subsidy combined with the cost of the additional life insurance needed to cover the private loan debt makes refinancing a disadvantageous move.
In all cases, be sure to discuss the extent and type of your student loan debt and your repayment plan with your estate planning attorney. Planning for federal student loans is notoriously difficult because they are a moving target. The rules surrounding forgiveness, associated income tax consequences, repayment plans and interest subsidies can be changed at any time by any administration. Until a borrower’s loans are actually forgiven or paid off, the rules may be changed in the middle of the game which can make planning very dynamic. It is imperative to monitor the laws surrounding student loans and how they may affect repayment options, forgiveness options and associated income tax consequences.
Labor Day is in the rearview, and the legal world churns on, with new developments, innovations and changes coming in on an almost a daily basis. This week’s update on the trending news in the legal industry features Clark Hill merging with Las Vegas litigation boutique firm Gentile Cristalli Miller Armeni Savarese, former FedEx Senior Vice President responsible for US Litigation joins Bradley, and six attorneys from Le Clair Ryan move to Fox Rothschild.
Read on to learn more about what’s happening.
Law Firm Hires, Moves and Mergers
Michael Best recently announced the addition of Mark Yacura to the firm’s Washington DC office. A seasoned attorney with more than 30 years of experience, he will join Michael Best as a partner and focus on FDA Regulatory issues. In his career, he has advised his clients on FDA approval and clearance processes, and worked on matters regarding synthetic pharmaceuticals, biotechnology diagnostics, medical devices and conventional foods, along with regulatory matters involving other agencies, such as the Consumer Product Safety Commission (CPSC), the Environmental Protection Agency (EPA), and the Federal Trade Commission (FTC), among others.
Eric Callisto, Group Chair of Michael Best’s Regulatory Practice, sees Yacura’s experience as crucial in advising the firm’s international and domestic clients on the shifting political landscape. Callisto calls Yacura “highly respected” and says, “it’s an honor to welcome him to our team in the Beltway.”
Connie Lewis Lensing
Bradley announced that Connie Lewis Lensing, formerly in house at Fed Ex, has joined the firm’s Nashville office. Lensing had a long and storied career at Fed Ex, where she most recently served as the Senior Vice President responsible for U.S. Litigation. In her role at Fed Ex, she pioneered the idea of an in-house law firm, bringing litigation and trial responsibilities into the corporate legal department and also oversaw litigation across the United States and the Virgin Islands, with an emphasis on employment matters as well as antitrust, governmental actions, and EEOC (Equal Employment Opportunity Commission charges.
Along with being a trailblazer of corporate legal services, Lensing also demonstrated her commitment to civil justice as the Vice-Chair of the Board of Directors and as Chair of the Executive Committee of the US Chamber of Commerce’s Institute for Legal Reform; additionally, she has leadership roles in the organization the Lawyers for Civil Justice.
Throughout her career Lensing has seen the experience of women in legal dramatically changed. This life experience has given her insight, and she shares her insights by mentoring young women attorneys and championing them. Kim Martin, chair of Bradley’s Litigation Practice Group, calls Lewis-Lensing’s record of mentoring younger attorneys as “fantastic.” She says, “We look forward to including her insights and experience in this area to further support Bradley’s mentoring efforts.”
Bradley Nashville Office Managing Partner Lela Hollabaugh calls Lensing joining Bradley “a thrill” and “a tremendous honor” to partner with Lensing as she “enters a new phase of her career as a litigator and innovator in private practice.”
Fox Rothschild LLP recently welcomed six attorneys from Le Clair Ryan to be spread across the firm’s Washington DC, Texas, and New Jersey offices.
Joining the Washington DC office are four attorneys, with Robert Fletcher and Brian W. Stolarz coming in as partners and Kristin W. Broz as counsel in the litigation group. Ashleigh R. Eames joins the firm as an associate, working in the labor and employment practice group. Fletcher works with corporate clients on litigation in industries such as retail, government, insurance, pharmaceutical and biotechnology. Stolarz works with clients on white collar criminal defense, with an emphasis on False Claims Act defense and securities enforcement. He also assists with internal investigations and securities enforcement. Broz has experience in class action litigation, and her background also includes experience with US and international regulations, consumer protection data privacy matters. Also joining the DC office is Ashleigh R. Eames, she will be an associate in the labor and employment practice, focusing on wage and hour issues and leave and accommodation matters, as well as hiring and workplace compliance matters.
William E. Hammel joins the firm as a partner focusing on labor and employment matters in Dallas, Texas, he has broad experience across labor and employment law, and in arbitration and litigation, but he has a focus on avoiding litigation through prevention and training, utilizing internal auditing tools and conducting investigations. His Texas roots run deep, with a JD from Baylor University and a BA from the University of Texas.
Christopher L. Pizzo joins Fox Rothschild as a partner in the corporate group in the Morristown, New Jersey office. He has a diverse group of clients, frequently working in industries that have a lot of regulation, and focusing on corporate, transactional and Mergers and Acquisitions.
In other big moves, Clark Hill recently announced it was joining forces with Las Vegas litigation boutique firm Gentile Cristalli Miller Armeni Savarese (GCMAS), with six attorneys joining Clark Hill, four as members, two as senior counsel. This combination grows Clark Hill’s presence in Las Vegas. Donald Ridge, Member in Charge of Clark Hill’s Los Angeles, San Francisco and Las Vegas offices, says “We’re excited about the combination as the team brings significant litigation and trial experience, along with a strong presence and network in Nevada that will benefit all of our clients.”
Dominic Gentile
The attorneys from Gentile Cristalli Miller Armeni Savarese will work out of Clark Hill’s Las Vegas office. Dominic Gentile, a founding member of GCMAS is a trial attorney with an impressive record of representing his clients in white collar and bet-the-company litigation matters, nationally and internationally on civil, criminal, securities and commercial fraud investigations and litigations. Gentile is involved in a variety of organizations associated with trial and litigation law, and he has a long career teaching trial advocacy and evidence at law schools across the country. Michael Cristalli will be a member with Clark Hill, using his experience representing clients in complex criminal, corporate and civil litigation matters. Some of the cases he worked on may seem familiar, as they have been featured on dateline NBC, CBS 48 Hours, and Cristalli has been a legal analyst on shows like Good Morning America, MSNBS and Fox and Friends. Ross Miller is a former Secretary of State of Nevada, the youngest to serve in this role in both Nevada and in the country. In this position, he oversaw Commercial Recordings, Securities, Elections, Nevada Business Portal, and Notaries Public. His public service also includes serving on State of Nevada Boards including the Board of Prison Commissioners, the Governor’s Office of Economic Development, and the State Audit Committee. Along with this public service, Miller was the Deputy District Attorney in Clark County. Paola Armeni will join Clark Hill as a Member, and she has a resume that includes representing clients in criminal defense and civil rights cases in Nevada state and federal courts. Vincent Savarese has worked in federal criminal defense, constitutional law, federal civil rights and asset forfeiture, in complex litigation at the pretrial, trial and appellate stage in state and federal court. He will join Clark Hill as Senior Counsel. Mark Dzarnoski is joining Clark Hill in the securities and investments group as a Senior Counsel having 30 years of experience. He guides clients through allegations of criminal fraud and SEC/FTC investigations and civil enforcement actions. s.
Gentile indicates this is a merger based on shared values. He says, “It was important to all of us that we merge with a firm that shared our client service philosophy, work ethic and values, and in Clark Hill we found the perfect alignment.” (image of Gentile?)
Law Firm Victories, Achievements and Awards
On September 3, 2019, Gilbert LLP announced that the Commercial Division for the Supreme Court for the State of New York ruled that Gilbert client, Michael Cohen, could continue his litigation against the Trump Organization, his former employer. Cohen is arguing that the Trump Organization failed to provide attorneys’ fees and reimburse his costs in connection to a variety of legal proceedings and investigations. Hunter Winstead, who serves as the lead attorney on the matter, indicated an intention to pursue this matter to conclusion, saying, “We intend to obtain full payment of Mr. Cohen’s claims.”
Just in time for back to school, Hinshaw & Culbertson LLP, announced the publication of their Third Edition of a 50 State Guide on Student Loan Servicing Regulations. The second edition was published in June of 2018, and this edition captures the changes in the regulatory landscape of this industry, with 6 additional states enacting laws concerning student loan servicing: Colorado, Maine, Nevada, New Jersey, New York and Rhode Island. The third edition covers changes up to May of 2019, and captures some of the updated regulations on licensing fees, processes and actions—demonstrating the steps loan servicers need to take to remain in compliance. Additionally, changes made in regulation requirements in Washington, DC-based on court rulings are covered by the guide. In this rapidly shifting regulatory landscape, this guide is designed to be a quick reference for student loan servicers (but does not constitute legal advice or create an attorney-client relationship) with state by state summaries covering state laws, licensing processes, and loan servicers’ duties, as well as each state’s enforcement mechanisms. (link to guide?)
North Carolina law firm Poyner Spruill announced partners Karen Chapman, Sarah DiFranco, and Susie Gibbons were recognized as North Carolina Lawyers Weekly’s 2019 Women of Justice Award honorees. This is a designation that recognizes the highest ideals of the legal profession, and women attorneys in North Carolina who demonstrate leadership, integrity, service, sacrifice and accomplishment in improving justice quality across the state.
Peter Friedenberg and Sara Jane Shanahan of Sherin and Lodgen were both recognized as a “Lawyer of the Year” in Best Lawyers. Friedenberg was recognized for his work in Real Estate Law, and Shanahan was recognized for Litigation—Insurance. This is a designation reserved for one attorney in each specialty and location who has received the highest overall peer-feedback for their specific practice area.
Legal Industry and Law School Developments
Continuing with the back to school theme of this edition of NLR’s Legal Industry Trends; at the end of August Berkeley Law School announced that it will now consider some applicants on the basis of a GRE or GMAT score, and those applicants can avoid the LSAT. The GRE and GMAT will be accepted for those interested in concurrent or combined degree programs, or for those who are enrolled in graduate school at the time of their application to Berkeley Law. Part of the reasoning behind this development is the school’s goal to admit “outside-of-the-box thinkers” and a holistic approach to application review, according to Kristin Theis-Alvarex, Assistant Dean of Admissions and Financial Aid. She says, “Test scores—from any source—are important, but not dispositive.” Dean Erwin Chemerinksy says, “Allowing these students to apply with the GRE and GMAT will further our interdisciplinary mission and help us to continue to attract outstanding law students.” This move is part of a pilot program, and the school will evaluate the results of this decision over the next three years carefully to maintain ABA compliance.
On the other end of the spectrum, The American Bar Association released its white paper, the ABA’s 2019 Profile of the Legal Profession. This report is the first of its kind from the ABA, crammed full of data about the state of the legal profession, compiling information from surveys, studies and reports about lawyers and law firms across the United States. The report has specific sections devoted to lawyer demographics, pay, legal education, and specific information related to women attorneys, pro bono efforts and legal technology. Some interesting points below:
Male attorneys still outnumber female attorneys, almost 2 to 1. Male attorneys are 64% of all attorneys while women attorneys are at 36%.
Most state bar associations do not track race and ethnicity of attorneys, but more did in 2019 (20 states) compared to 16 states tracking in 2009.
The average lawyer salary is $144,230, but increases have slowed down after the recession of 2008-09, but from 1998 to 2018 overall, lawyer salaries almost doubled, but the cost of living rose 53%.
Of the students who enroll in law school, 35% enroll right after undergrad and 65% take at least a year off between undergrad and law school. The most common reason cited for going to law school was a route to careers in politics, government or public service, at 44%.
Full of information and factoids, this report deserves a close reading by anyone interested in getting a handle on the legal industry.
Gartner, a leading research and advisory company, recently reported the results of a survey on cost-effective legal departments. To provide this data, Gartner surveyed more than 140 companies in different locations, industries and revenue size to identify those that spend in the lowest quartile of their peer group, while handling a similar workload. Overall, the study indicated in house legal departments that invested in improving internal processes and growing internal capabilities with investments in staff training as well as standardizing legal work and developing legal ops capabilities were the most cost-effective. In fact, 63% of in-house legal work is routine, and can be standardized, and departments that lack legal operations capabilities spend 30% more than those with those abilities. These steps assist legal departments in bringing work in house and saving outside counsel expenditures for critical matters.
Michael Mayfield, research director in Gartner’s Legal & Compliance practice, says, “General Counsel also need to invest in the right areas to equip their teams to be successful, this is most clearly on display when looking at the differential in training spend between cost-effective legal departments and their higher-cost peers.”
That’s a wrap for this week. We’ll have more later in the month!
Last week, in a decision highlighting the overlay of environmental and corporate law, a Washington federal district court dismissed claims seeking remediation costs, attorneys’ fees, and a declaratory judgment on liability under the Model Toxics Control Act (MTCA) by the current owner of a service station in Cle Elem against Chevron Corp., Chevron USA, Inc., and unnamed “predecessor companies and subsidiaries.” Short Stop Shell, LLC v. Chevron Corp., No. 1:19-cv-03103-RMP, Dkt. No. 43 (E.D. Wash. Aug. 27, 2019) (Order Granting in Part & Denying in Part Defendants’ Mot. to Dismiss & Denying Plaintiff’s Mot. for Summ. J.). The court rejected the allegation that the Chevron entities were corporate successors to Texaco, Inc., which was believed to be responsible for contamination at the service station.
The court’s findings reflect a limitation on the sweeping liability under MTCA and similar statutes, the relevance of corporate transactions in minimizing such liability, and the potential difficulty of identifying proper corporate defendants before filing lawsuits for cost recovery at contaminated sites.
Site Background – Petroleum Contamination at Service Station
The claims alleged that, until 1984, Texaco owned and operated the service station where contamination had been disposed or released at the property. In 2000, Texaco agreed to indemnify an owner of the service station for “actual petroleum contamination originating from the Property in excess of clean up levels [that] originated from Texaco’s operation of a gasoline … facility … or from deliveries of motor fuels to the station ….” Then, in 2001, Chevron Corp. acquired Texaco in a “reverse triangular merger.”
The plaintiff acquired the property in 2012, decommissioned several underground storage tanks alleged to be leaking, and incurred over $275,000 in remediation costs.
Court Decision – “Broken Link in the Chain of Liability”
Ultimately, the court concluded that the “reverse triangular merger,” in which Texaco merged with a subsidiary of Chevron Corp., did not cause Chevron to assume Texaco’s liabilities. Rather, Texaco remained a “separate entity” as a Chevron subsidiary and Chevron was not a successor to Texaco’s liabilities. The Court found further that suing unnamed defendants was a “disfavored practice” and agreed to strike the “John Doe”-style pleading that included a general reference to the defendants’ “predecessor companies and subsidiaries.”
The court also rejected a judicial estoppel theory that the defendants had already accepted liability “through their actions,” which included interactions between Chevron EMC, a Chevron subsidiary “that manages environmental matters for affiliated companies, including Texaco,” and Ecology. Notably, the court determined that even if, in an ambiguous exchange with Ecology in 2003, Chevron had accepted “potentially liable person status,” that such an acceptance did not amount to a “representation” that the defendants had “expressly assumed Texaco’s liabilities.”
However, litigation is likely to continue. In order to “properly allege a theory of liability,” the court granted the plaintiff leave to incorporate allegations in an amended complaint that the defendants “delivered gasoline products to tanks” that they “knew were leaking.”
Last week, on the heels of a significant decline in Bitcoin prices, Forbes reported that China’s Central Bank is set to launch the world’s first state-backed cryptocurrency. The cryptocurrency will be made available initially to seven of China’s largest financial institutions, including three banks and two financial technology companies (including Alibaba). It is planned to eventually reach the virtual wallets of U.S. consumers, through relationships with Western correspondent banks.
Meanwhile, in the United States, litigation rages on against Mark Karpeles, the President and CEO of Mt. Gox. Formerly the world’s leading bitcoin exchange platform, Mt. Gox filed for bankruptcy protection in Japan in 2014 amidst reports of rampant security breaches and refusal by its Japanese banking partner, Mizuho Bank, to process withdrawals for Mt. Gox users. Before its bankruptcy, Mt. Gox announced that 850,000 bitcoins valued at more than $450 million had gone “missing,” likely due to cyber theft.
In the aftermath, Mt. Gox account holders filed putative class actions against Karpeles and Mizuho in the Central District of California, the Northern District of Illinois, and the Eastern District of Pennsylvania, asserting causes of action for negligence, fraud, and tortious interference. In each action, both defendants filed motions to dismiss, claiming lack of personal jurisdiction due to their residences in France and Japan, respectively.
Earlier this year, all threecourtsdismissed Mizuho from the litigation, agreeing that the bank did not purposefully direct any activity at the forum states. Mt. Gox’s bank accounts with Mizuho were located in Japan, the decisions not to process withdrawals from those accounts were made by Mizuho employees located in Japan, and all wire transfers were initiated or received in Japan.
However, all three courts denied Mr. Karpeles’ motions to dismiss for lack of personal jurisdiction. Mr. Karpeles, a French citizen, argued that his contacts with the forum states were merely the incidental result of where some Mt. Gox users lived. The courts unanimously disagreed.
In the most recent of these three decisions, the Eastern District of Pennsylvania, relying on the previous decisions by the courts in California and Illinois, held that it has specific jurisdiction over Karpeles “because he availed himself of the privilege of conducting business in Pennsylvania through soliciting business from [a named plaintiff] and thousands of other Pennsylvania residents through the Mt. Gox website.” Pearce v. Karpeles, No. CV 18-306, 2019 WL 3409495, at *4 (E.D. Pa. July 26, 2019).
The Court applied the “sliding scale” test established by Zippo Manufacturing v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1123-24 (W.D. Pa. 1997), which has been characterized as “a seminal authority regarding personal jurisdiction based upon the operation of an internet website,” to determine that Karpeles’ internet presence sufficiently gave rise to personal jurisdiction over him. Karpeles, 2019 WL 3409495, at *4-5. The Zippo scale “ranges from situations where a defendant uses an interactive commercial website to actively transact business with residents of a forum state (personal jurisdiction exists) to situations where a passive website merely provides information that is accessible to users in the forum state (personal jurisdiction does not exist).” Id. at *4. Under that Pennsylvania precedent, a defendant has purposefully availed itself of the privilege of doing business in the state if its website “repeatedly attracts business from a forum or knowingly conducts business with forum state residents via the site.” Id. at *5.
The Court held that Mt. Gox’s internet activity fell at the “interactive end of the Zippo spectrum.” Id. Mt. Gox’s website was interactive, allowing users to open and manage accounts, make purchases and trades, and transfer and deposit cash. Id. Further, Mt. Gox had knowledge of the residences of its users because at the time they opened accounts, they had to provide Mt. Gox with their addresses and other personal information. Id. Users could also purchase “Yubikeys” (a hardware authentication device that allows users to securely log into their accounts) to be sent to their physical addresses. Id. Approximately 4% of all Mt. Gox users (over 19,000 individuals) who registered with addresses were Pennsylvania citizens, making Karpeles’ interactions with the forum state neither random, isolated, nor fortuitous. Id. at *6.
The Court also rejected Karpeles’ assertion that it would be unfair to force him to defend in the United States since he is on probation in Japan and prohibited from leaving the country, holding that the interests of the plaintiffs and the forum state justified any burden of defending in Pennsylvania. Karpeles, 2019 WL 3409495, at *8-9.
The increased use of cryptocurrency looks inevitable, with Facebook’s cryptocurrency, Libra, poised to launch in 2020, and some economists proposing that a cryptocurrency backed by central banks throughout the world will email one day replace the U.S. dollar as the world’s global reserve currency. As cryptocurrency proliferates, it is likely that so too will cryptocurrency litigation, bringing with it a host of jurisdictional challenges for litigants. The Mt. Gox-related orders provide valuable insight into how some such challenges may be resolved in the future.
On August 6, 2019, New Jersey substantially amended its wage and hour laws in several critical respects by, among other provisions, expanding the statute of limitations, increasing damages and criminal penalties, strengthening anti-retaliation provisions and, overall, making it easier and more lucrative for employees to prevail on wage and hour claims. The new “Wage Theft” Law is effective immediately, except for one provision identified below. Here is a summary of the key provisions:
The Statute of Limitations Expands from 2 to 6 years – The amendment triples the amount of time available to file claims for unpaid minimum wage and overtime payments, thereby tripling the potential damages available to employees. New Jersey now joins New York in implementing a 6-year statute of limitations for such claims. In contrast, the statute of limitations under federal law remains at 2 years or 3 years, depending on whether a willful violation was committed.
Liquidated Damages – The amendment provides that, in addition to having to pay earned, unpaid wages, employers also will be liable for liquidated damages of up to 200% of the wages owed. Previously, liquidated damages were not available under New Jersey law. A limited “good faith” defense will be available to first-time violators under certain circumstances.
Anti-Retaliation – The amendment expands the anti-retaliation provisions by making it a disorderly persons offense to take retaliatory action by discharging or otherwise discriminating against an employee for making a complaint, instituting an action, or informing other employees about their rights concerning wages and hours of work.There is a rebuttable presumption of retaliation for adverse actions taken within 90 days of an employee filing a complaint with the Department of Labor or a court action. Liquidated damages are available for claims of retaliation.
Fines and Penalties – It is now a disorderly persons offense for an employer to (i) knowingly fail to pay wages, compensation or benefits when due, (ii) take retaliatory action, or (iii) fail to pay agreed-upon wages within 30 days of the date when payment is due. An employer who commits any such offense must pay wages due plus 200% of that amount in liquidated damages, reasonable costs and attorneys’ fees, a fine of $500 for a first offense (which increases for subsequent offenses) and, under certain circumstances, an additional penalty of 20% of wages due and/or imprisonment. The amendment provides for a broad definition of “employer” to include officers of a corporation and “any agents having the management of that corporation.”
Creation of a New Crime – The amendment creates a new crime of “pattern of wage nonpayment” for a person convicted of violating certain provisions of the Criminal Justice Code and/or wage and hour laws on two or more occasions. Though this is classified as a “3rd – degree” crime, there is no presumption of nonimprisonment. This provision will become effective three months from the August 6 enactment date.
Joint and Successor Liabilities – The amendment expands the circumstances under which organizations may now be held liable as joint or successor employers.
Failure to Maintain Records – The amendment provides that employers who fail to produce required records are subject to a rebuttable presumption that allegations by the employee concerning the time period the employee was employed and the wages that are due are true.
Employer Notice Requirement – The amendment imposes a new written notice obligation on employers. NJ employers will be required to distribute both to current employees and new hires a form the NJ Department of Labor and Workforce Development will publish.
Take Aways
Wage and hour compliance has long been a vulnerable area for employers, and New Jersey employers must now contend with wage and hour protections that are among the strongest in the nation. It is more imperative than ever for New Jersey employers to (i) properly classify workers, where warranted, as employees rather than as independent contractors, (ii) properly classify employees as exempt or non-exempt from overtime requirements, (iii) timely pay employees all wages, compensation and benefits due, including overtime, and (iv) maintain required wage and hour records for at least 6 years.
Public health officials in Mendham, New Jersey are dealing with a relatively rare instance of a foodborne hepatitis A outbreak due to an ill food handler. The employee has been linked to illnesses in 27 people, with 1 death reported.
According to the Centers for Disease Control and Prevention, foodborne outbreaks of hepatitis A are not common in the U.S. CDC does not recommend that all food service workers receive routine vaccination against hepatitis A—except in areas with an active community-wide outbreak and where state and local health authorities (or private employers) indicate that vaccination would be cost-effective.
There are hepatitis A outbreaks in Alabama and Nevada where infected food handlers have been identified but where illnesses have not been traced to such workers. Twenty-five counties in Alabama are reporting cases of hepatitis A in an outbreak that has been ongoing since September 2018, including among food workers; officials are urging food handlers in that area to get vaccinated. Officials in Las Vegas, which also has an ongoing outbreak with 86 cases and one death, have warned customers who purchased non-prepackaged foods at a 7-Eleven store where a worked tested positive for hepatitis A to be on the lookout for symptoms.
CDC’s hepatitis A surveillance is updated through 2016. Thus, it is not yet clear whether the 2019 cases reflect a marked increase in the incidence of hepatitis A in the U.S.
Please join MoginRubin partner Jennifer Oliver in Chicago on September 24th as she joins other prominent legal and economic advisors as a panelist at McDermott Will & Emery’s “Wage the Battle to Win the War: Expert Challenges at Class Certification.” The discussion will focus on the panelists’ analysis of the current legal and economic state of class certification. Titled “Wage the Battle to Win the War: Expert Challenges at Class Certification,” Jennifer will be joined by fellow panelists from McDermott Will & Emery, Berkeley Research Group, LLC, and NERA Economic Consulting.
Certifying an antitrust class under Rule 23 has become a battle. In the last 20 years, courts have been changing the game around Rule 23 interpretation, and rigorous analysis at class certification has made briefing voluminous and expensive. Plaintiffs and defendants have had to respond accordingly by leveraging the legal tools at their disposal, wondering if there is a way to get out of the trenches and streamline the process.
On September 24, join us in Chicago for a panel discussion on the state of class certification. Seasoned legal and economic advisors will first analyze the various legal maneuvers that have caused class certification to evolve into the lengthy and expensive process we see now. They will then discuss how courts can curtail this trend in various ways, including by giving Daubert motions due consideration at class certification—a move that would pave the way for cases to be resolved early if granted, by considering the denial of those motions a route to fast-track expert issues to trial, or by dialing back and bringing the class certification process closer to its procedural roots.
Our agenda includes insights and recommendations on the following topics:
Definition of “rigorous analysis”
Daubert motions and how they can be used to streamline litigation
Recent class certification opinions to see how courts are applying rigorous analysis and reacting to Daubert motions at the class certification stage
How to work within litigation realities to curb the time, money and effort expended in an antitrust class action
When it comes to getting the word out about their firm’s gender diversity, many marketing directors focus on publicizing stats that demonstrate progress. Using external communications to spotlight an evenly split associate class, a new equity partner who is a woman or the contributions of women attorneys on marquee cases is a great way to promote your firm’s commitment to gender equality.
But statistics are only one piece of the story about how your firm supports its women lawyers. And that full story may already be on display for prospective clients and recruits, whether you realize it or not. Your overall messaging comes across not just in the communications you produce — on your website, on social media, in ads and thought leadership pieces — but also in who speaks for your firm in the media and what they say. There’s nothing worse than launching an ambitious information campaign to modernize your firm’s image, only to have it undermined by comments to a reporter that are way off message.
Let’s look at two hypothetical cases of law firm leaders quoted in a legal media story on the lack of women represented in banking and finance law.
Law leader A describes his firm’s talent-driven effort to bring in the best women attorneys as well as a robust mentoring and sponsorship program focused on advancing them to leadership positions. “It’s important to us to promote top women attorneys,” he says. “But inclusion isn’t something the firm is embracing out of social correctness or benevolence. Instead, we know, and research shows, that more diverse teams of lawyers are better problem solvers, which means they provide better service to clients. More women in leadership is good for the firm and good for our clients.”
Law leader B talks about his firm’s efforts in a different way. He notes that he’s pretty sure the firm won the business on a $30 billion deal because they included a woman on the team at the pitch meeting, though he doesn’t say whether that woman will play a significant role on the work itself. On the matter of advancing women attorneys in this practice area, he says, “We’re trying, but this job is just inherently demanding and unpredictable, and it’s tough for someone with childcare responsibilities to fully participate.”
Leader A’s comments underscore the marketing department’s work to get the word out about the progress the firm is making on gender diversity. He skillfully articulates not just what the firm is doing but why, and how these initiatives will ultimately benefit clients.
Leader B’s comments, however, will make most marketing directors break into a sweat. He talks about diversity as a legal obligation but also a burden on the firm. And while he seems genuinely to believe that a lack of women in power is a loss for those women, he does not articulate an understanding that the firmand its clients are worse off without the unique contributions those women attorneys would make to the work. Comments like these to a reporter are off message and undermine the firm’s overall goal to demonstrate that it is willing to change things like work processes and schedules to prioritize gender diversity.
Marketing directors don’t always have control over who takes a reporter’s call or what that person chooses to say. But as much as possible, marketers must take proactive steps to harness the power of these media opportunities and make sure they work in service of the firm’s overall communications strategy. Here are three ways you can start this work today:
Integrate messaging across internal and external communications. Has your firm articulated how its gender-equality initiatives line up with its stated values or mission statement? Your internal communications are the place to begin distributing those talking points. All members of the firm should understand not just what you are doing to support the advancement of women but why, and how the initiatives serve clients. This messaging should be consistent across your internal and external outreach.
Advocate for media training. High-quality media training will prepare your firm’s leaders to speak knowledgably about the firm’s diversity initiatives and stay on message. It will also help to create a plan for which leaders should speak on which topics to maximize credibility.
Broker relationships between key reporters and select attorneys. You can influence who becomes the face of the firm in the media by taking proactive steps to match reporters with your best spokespeople and steering them away from less reliable partners. To maximize the effectiveness of these introductions, prepare both parties for the conversation: help your firm representative understand the reporter’s specific interests, and provide the reporter with background on the attorney’s expertise and roles within the firm. Don’t leave anything to chance.
Your efforts to promote your firm’s diversity initiatives will only be successful if your messaging is consistent across all channels. Get proactive to ensure that your firm’s media opportunities support your communication strategy and build the firm’s brand overall.
Just in time for back to school, 
Continuing with the back to school theme of this edition of NLR’s Legal Industry Trends; at the end of August 
On the other end of the spectrum, The 
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