Thursday, July 11, 2013

Harvard Law Financing Grads' Public-Interest Projects

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Court Hits Homestretch With Big Cases Still On Deck

As she summarized the first opinion of the day on Thursday, Justice Elena Kagan said it involved the Armed Career Criminal Act and joked that it was "possibly not what you're here for this morning."

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In Letter to Congress, AG Holder Defends Leak Testimony

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Circuit Finds Blogger Issued 'True Threat' Against Judges

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Tuesday, July 9, 2013

Patton Boggs Accuses Burford of Betrayal in Chevron Case

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2013 In-House Tech Survey

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In-house counsel render legal advice and lead e-discovery and compliance efforts every day. But now, it turns out, they can also tell you where the nearest Apple store is, too. If there were any doubts that iPhones and iPads—not to mention Android- and Windows-based mobile devices—have become a force within law departments, Corporate Counsel's 2013 technology survey dispels them. Mobile is here, and it's hot.

It also may be steering law departments toward trouble.

Our survey—answered by 47 companies with an average lawyer roster of 54—raises questions, and potential red flags, about just how the current, consumer-oriented generation of tablets and smartphones is being integrated into the corporate legal environment. While 76 percent of respondents said that legal staff can bring in and use their own mobile devices, of their own choosing, the survey reveals a surprising lack of consensus on policies. Security strategies are all over the map—and in some cases, perhaps not sufficient. More troubling: Nearly a quarter of respondents—23 percent—said that their legal department had no formal security policy at all for mobile devices.

Meanwhile, the survey shows that in general, the ways in which lawyers are using their devices are fairly humdrum, largely involving messaging or document viewing. More sophisticated uses, and capabilities, are going untapped.

The news isn't all worrisome, however. Bright spots among the survey results include a healthy uptick in IT budgets for a sizable number of law departments. Fully 20 percent of respondents saw their IT capital budget rise by more than 10 percent over the prior year, while less than 3 percent saw it decrease more than 10 percent. In all, capital budgets rose for 26 percent of law departments, remained stable for 60 percent, and decreased for 14 percent (operating budgets saw a similar pattern, increasing for 34 percent of respondents, while remaining flat for 49 percent and decreasing for 17 percent).

We see upward movement, too, in law departments' embrace of the cloud—a business model that offers increased efficiencies since companies, in effect, rent applications and hardware from third-party providers, instead of buying them, updating them, and maintaining them on their own. Nearly two-thirds of respondents—63 percent—said that their legal department uses cloud-based services, up from 50 percent in 2011.

And while the cloud has traditionally sparked worries about customization, control, and security, the legal departments that have embraced it have few regrets. Fully 80 percent say the experience was "mostly positive," with the other 20 percent labeling it "somewhat positive." The survey found the main uses of the cloud (in descending order) to be e-discovery and litigation support, billing, document management, and storage.

One thing that hasn't changed, however, is the law department's reliance on others within the company for its IT support, and even its IT–related decision making. Less than a quarter of respondents—23 percent—say their legal department has a dedicated IT staff. And an overwhelming majority—71 percent—note that all IT requests must be processed through central corporate procurement.

Legal technology experts contend that such strategies can hinder the ability of lawyers to effectively use the tools they need to do their job. The problem, and it's a historical one, is that the systems that lawyers rely on—such as their document management systems—tend to be different than those used by other parts of the organization. "In a law firm, you would have an administrator who specifically understands this 'law' product," says Adriana Linares, the president of LawTech Partners, a training and consulting firm specializing in the legal community. "In a company, when there is not dedicated legal IT support, [it's harder to] get the required customization and attention."

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Judge Approves $17 Million in Fees for Dewey Advisers

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N.Y. Regulator Inks $250 Million Bank of Tokyo Deal

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Monday, July 8, 2013

Missing Lake Worth real estate attorney turns himself in

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11th Circuit Conflicted On Juveniles Stance

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Lawyer Censured for Pressing Client To Drop Ethics Complaint

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Not Having a BYOD Policy Can Get Expensive

Security

Cybersecurity is, it’s fair to say, a major obsession in corporate and government circles. The evidence isn’t merely anecdotal: A whitepaper released earlier this month and analyzed by CorpCounsel.com says that cybersecurity is one of the top risk factors cited in filings to the Securities and Exchange Commission.

You’re concerned, too, if the results of our 2013 In-House Tech Survey are anything to go by. Specifically, a good chunk of respondents are worried about leaks from employees bringing their own devices (BYOD) to work—and carrying company secrets out with them.

Here’s some more reinforcement: A survey by e-discovery vendor FTI Technology shows that 64 percent of the in-house lawyers responding called Big Data their biggest e-discovery challenge, and are preoccupied with the implications of BYOD.

“Many of us are dealing with the BYOD issue right now,” notes one respondent. “There’s a lot of competition between IT, which wants to serve the employees, and the legal/compliance teams, who want [security on devices] done properly.”

What’s a tech-savvy corporate counsel to do? You can’t go back, says Erik Hammerquist, director of FTI. “So you have to have an acceptable use policy.” He says legal departments, working with IT and human resources, need to issue written rules for employees accessing company data on personal devices. These policies should be read and signed by the employees.

Some companies are going further, making sure that IT professionals segregate company material on a separate part of the employee’s phone, tablet, or laptop.

What happens if you don’t have formal BYOD policies? “It can get expensive,” says Hammerquist. Often, e-discovery means getting access to the employee’s device. If the employee refuses, “it can get complicated—and expensive.” He talks about one situation he experienced in which an entertainment industry employee balked at letting his company lawyers see texts on his phone. “Another law firm was brought into the matter—another expense.”

Having a BYOD policy—and employees who adhere to guidelines—can mitigate such risk and expenses. In the end, Hammerquist says, “if you can control what happens when people misbehave, you’re doing okay.”

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Sunday, July 7, 2013

Big Banks Worried About Outside Counsel Who BYOD

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Note to Big Law: When you’re working with Wall Street, don’t BYOD. At least not until the devices are configured to secure data.

That’s the anti-Bring Your Own Device message the country’s biggest banks and financial institutions are trying to convey to their law firms, according to the global chief operating officer of Goldman Sachs’s legal department.

Actually, Goldman’s Jeffrey Isaacs doesn’t care if the outside lawyers his department hires have personal smartphones in their pockets—he just doesn’t want them to use the same devices for business.

He spoke to a small gathering of in-house types who had been invited to attend a panel discussion called “Legal Departments Under Pressure,” which was held at the Yale Club in Manhattan on June 19. Isaacs underscored his point by picking up the two smartphones on the table in front of him.

“Everyone on Wall Street” uses separate devices for business and personal data, he said. But the law firms they hire as outside counsel haven’t gotten on board, he complained. The firms are apparently worried that they will be at a “competitive disadvantage”—especially when recruiting talent—if they agree to enforce stricter data-security standards for smartphones, tablets, laptops, and other digital devices.

Isaacs wasn’t the only panelist who expressed concern. The subject was first raised by moderator Kris Satkunas, director of strategic consulting at LexisNexis, which sponsored the event (organized by Sandpiper Partners LLC). Panelist Lani Quarmby, associate GC who oversees outside counsel management at Bank of America, said she and her colleagues spend lots of time talking to law firms to see how they’re protecting data.

“Can you imagine if a law firm had a breach” of their clients’ confidential information? “We wouldn’t work with them again,” she said.

Rose Battaglia, global chief operating officer responsible for Deutsche Bank’s legal and compliance departments, also chimed in. For the first time her team is being asked to perform risk assessments of their law firms. In a world where companies are responsible for the behavior of their vendors, law firms are among the last vendors they’re assessing, she said.

Isaacs said that companies understand that federal regulators are eager for them to resolve the issue. He has a sense that if companies don’t, the regulators will step in and impose a solution for them.

Many of the largest banks and financial institutions are concerned enough that they have joined together to attack the problem as one, Isaacs said. He and his counterparts have identified 11 big law firms and have begun a dialogue—mostly with the firms’ chief information officers, along with a smattering of partners, he said.

They plan to voice their concerns in a more public way at a conference in Las Vegas in August, Isaacs added, referring to the upcoming International Legal Technology Association event. And if that doesn’t work, he concluded, Goldman intends to host a data-security meeting in October.

If there was a time when BYOD sounded like an acronym you might see at the bottom of a party invitation, apparently those days are gone. The message from the big banks seems clear: Sober up!

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2013 In-House Tech Survey

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Protection of Pregnant Women in the Workplace

There are several federal laws in place to protect pregnant women and women with newborns in the workplace. Over time, the laws have become more expansive so as to not only prevent discrimination based on pregnancy, but to provide leave entitlement and most recently to provide lactation privacy rights. The laws promote the necessity of women in the workforce while recognizing the importance of motherhood.

In 1978, 14 years following its passage, Title VII of the Civil Rights Act of 1964 was amended to include the Pregnancy Discrimination Act (PDA). A new subsection was added that provided as follows:

"The terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth or related medical conditions; and women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in Section 703(h) of this title shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion."

While pregnancy in and of itself may not be considered a disability as defined by the Americans with Disabilities Act, pregnancy can cause other conditions (i.e., gestational diabetes or pre-eclampsia) that may be considered a disability under the more lenient 2008 amendments to the ADA. Moreover, if an employer provides accommodations to temporarily disabled employees, it must do so for pregnant employees. As such, an employer may have to provide light duty, alternative assignments, disability leave or unpaid leave to pregnant employees if it does so for other temporarily disabled employees.

Pregnant employees are also entitled to freedom from harassment based on pregnancy. This is an area where frequent claims may arise. Taking bets on delivery dates, jokes about the baby delivering while the employee is at work and comments that might be intended as an expression of caring for the employee can often lead to charges of a hostile work environment.

Perhaps the law that has had the most impact on a woman's ability to balance work and motherhood is the Family and Medical Leave Act. The FMLA was enacted in 1993 and provides different types of leave relating to pregnancy and childcare: Pregnancy leave: Expectant employees may use FMLA for pregnancy if its complications present a serious health condition. If a doctor determines that a period of leave is necessary, expecting employees will be able to use FMLA for pregnancy.Parental leave: Both men and women may take parental leave following the birth or adoption of a child at any time during the first year after the child is born or adopted.Intermittent parental leave: New parents are also entitled to work part-time for a limited period or take some time off immediately following the birth or at a later date.

It is extremely difficult for employers to administer intermittent parental leave and this type of leave is often subject to abuse. However, it is this type of leave that is intended to allow parents to not miss some of the early milestones in their child's life.

Prior to the enactment of the FMLA, employees with newborns were limited in their ability to take leave to take care of their children and were faced with the uncompromising position of having to choose between remaining at home to care for their children or returning to work. The FMLA recognizes that in today's society most households require the income of both parents and allows parents the opportunity to care for their children for up to 12 weeks without risking their jobs.

The most recent law that provides protections to female employees who have recently given birth is the Patient Protection and Affordable Care Act, which amended the Fair Labor Standards Act to require employers to provide a nursing mother reasonable break time to express breast milk after the birth of her child. The amendment also requires that employers provide a place for an employee to express breast milk.

Specifically, Section 7 of the Fair Labor Standards Act of 1938 was amended to include the following:

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Judge Approves $35 Million Flonase Antitrust Settlement

Days after approving a $150 million class action settlement between direct purchasers of nasal spray Flonase and manufacturer GlaxoSmithKline, a federal judge has approved a $35 million settlement between GSK and the indirect purchasers of the drug.

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