Feeds:
Posts
Comments

Archive for May, 2013

I’ll be presenting at a Webcast on trends in social media and the law next Friday, June 6, along with Michele L. Gibbons of Jones Day.  See below for a program summary.  You can register by clicking this link:

Social Media Crash and Burn:
Cleaning up the Mess and Rebuilding
LIVE Webcast

In today’s digital age, corporations spend more on online advertising than in print to the tune of billions. However, as the corporate world utilizes social media, they should also be ready and responsive when the inevitable crash and burn occurs. Poorly executed social media campaigns have cost companies and individuals, big time.

Getting ahead of the game is always a good technique to help mitigate the risk and minimize the damages. Once a campaign is out in the wild, there’s no stopping it. You need to think ahead. Join this LIVE Webcast as some of the industry’s great minds share their opinions on best practices for using social media effectively and safely. They will also provide an in-depth look at its features and practical uses. The discussion will also include the following:

Thursday, June 6, 2013
12:00 pm – 2:00 pm (ET)

Credit Info:
Course Level: Intermediate
Prerequisite: None
Method of Presentation:
Group-Based-Internet
Recommended CLE/CPE Hours:
1.75 – 2.0
Advance Preparation:
Print and review course materials
Course Code: 134422 

• Advantages and Disadvantages of Social Media as a Marketing Tool
• Things to Consider in Generating and Implementing Social Media Policies
• Securing Data: Understanding CDA’s Safe Harbor and Privacy law
• Effective Ways of Mitigating and Managing Risks That May Exist
• Significant Legal Issues Related to Social Media Usage
• Damage Control
• Up-to-the minute Regulatory Updates
Social Media Crash and Burn: Cleaning up the Mess and Rebuilding — LIVE Webcast is a must-attend event for In-House Counsel, Risk Officers and Administrators, Data Security Professionals and other related professionals.

Speakers:
Paul G. Karlsgodt, Partner, BakerHostetler
Michele L. Gibbons, Of Counsel, Jones Day
(Note: if CLE or CPE is needed, a minimal/partial processing fee is $49 for the registrant. Otherwise, it’s 100 percent free to participate in the webcast.)
Register for this event
Email: info@knowledgecongress.org with any questions.
(Please note, complimentary passes are available for the first 30 registrants. Once all of the passes are used, attendees can register for the deeply discounted rate of $25 each, courtesy of BakerHostetler.)

Read Full Post »

The Class Actions, Mass Torts and Derivative Suits Subcommittee of the Colorado Bar Association, now ably chaired by my BakerHostetler partner, Casie Collignon, held its first CLE luncheon of the year this past Friday.  The program, United States Supreme Court vs. Class Actions in 2013, featured excellent commentary about the Supreme Court’s 2013 class action decisions by The Honorable Marcia Krieger, Chief Judge, U.S. District Court for the District of Colorado, Seth Katz of Burg Simpson, and John Fitzpatrick of Wheeler Trigg O’Donnell.  Here are just a few of the many insightful observations made by each of the speakers:

Judge Krieger opened by observing that none of the cases this term have been a surprise from the standpoint of what a trial court judge would have expected given existing law.  Amgen was predictable because the question of materiality in a securities fraud case is unquestionably a common issue, so it is not surprising that it is a question for trial, not a prerequisite for class certification.  Standard Fire can be viewed as a straightforward application of agency law: a plaintiff cannot bind a class of people that he or she doesn’t yet represent.  Comcast exemplifies the importance of examining the plaintiffs’ theory of liability and the relationship to the theory of loss.  Damages are not the same as loss.  The theory by which the plaintiff establishes loss determines the measure of damages.

When asked to identify any trends that she has been seeing in class actions recently, Judge Krieger identified issue certification as a key trend.  She has been seeing more situations where the factual issues may be individualized but there are common legal issues that can be resolved classwide.  She noted that she has been inclined to grant partial certification limited to the common legal issue(s) in that situation.

From the plaintiffs’ perspective, Katz agreed that the outcome of Standard Fire was not surprising, and he went as far as to say that the outcome was correct, noting that plaintiffs’ attorneys shouldn’t be afraid of the federal courts.  Although the holding of Amgen was favorable to plaintiffs, Katz noted an issue that should be of great concern to plaintiffs, and that is the commentary from the conservative wing of the court suggesting that they might be willing to revisit the fraud-on-the-market presumption adopted in Basic Inc. v. Levinson.  Katz sees the potential of a 4-4 split on that issue, with Chief Justice Roberts being the deciding vote.  He predicts market studies being commissioned by both sides over the coming years to demonstrate or disprove the continued efficiency of the markets.

Comcast, Katz noted, caused a collective sigh of relief in the plaintiffs’ bar because it does not go as far as many would have feared by requiring Daubert hearings at the class certification phase.  He noted that one positive impact for plaintiffs arising from the “death of Eisen” (the rejection in decisions like Wal-Mart and Comcast of the idea that merits questions were off-limits at the class certification phase) is that it gives plaintiffs’ counsel an opportunity to obtain merits discovery much earlier in a case than was allowed previously.  On the other hand, Katz expressed fear about the possibility that the Court is trying to raise the bar for plaintiffs with a subtle change in the language about what common proof is necessary on the issue of damages.  Where earlier decisions required that damages be “susceptible to classwide proof,” the Comcast majority phrased the standard as requiring the plaintiff to “prove classwide damages.”  Katz predicts that defendants will argue that this means damages must be uniform, as opposed to simply being susceptible to formulaic calculation.  He noted, however, that the few lower courts that have interpreted Comcast so far have rejected a broad application of the decision.

Fitzpatrick combined philosophical commentary about the evolution of class actions with some practical tips for defense lawyers.  Standard Fire, he argued, is proof that judicial hellholes still exist.  He pointed to Amgen as an example of the dangers of accepting conventional wisdom, pointing out that the outcome in that case might well have been different if the defendants had stipulated to the existence of an efficient market.

Comcast, Fitzpatrick said, provides an opportunity for defendants to prevail at the class certification stage by discrediting a plaintiffs’ expert.  Focus not just on the opinions themselves, he suggested, but also on 1) the existence of bias; 2) the expert’s credentials, and 3) flaws in the methodology.  Scour the country for transcripts about the plaintiffs’ experts.  Look at misstatements and exaggerations in the expert’s CV.  Make sure you find and read all of their prior statements in books, media, and transcripts.  Just as important, Fitzpatrick reminded defense practitioners, is the make sure to prepare your own experts for class certification.

Read Full Post »

An article posted by my colleagues Judy Selby and Zack Rosenberg in the BakerHostetler Class Action Lawsuit Defense Blog raises some important issues for any company that could find itself the target of a class action lawsuit.  With the proliferation of data privacy and other consumer class actions, that’s just about any company these days.  The article, titled Courts Are Liberally Construing Litigation Insurance Coverage for Class Action Defenses and So Should Defendants, addresses the important issue of liability insurance covering class action lawsuits.  

I’m often surprised in speaking with in-house attorneys and risk management personnel that they are unaware of the extent to which their current insurance coverage might protect them if they were ever sued in a class action, and that they have not considered certain types of specialty lines insurance, such as cyber risk insurance, that might protect them from potentially catastrophic liability and defense costs arising out of a class action.  This is an especially important consideration for companies in industries that aren’t frequently targeted in class actions, because those companies may not think about the benefits of insurance protection until it’s too late.

Read Full Post »