• Posts by Joseph M. Callow, Jr.
    Partner

    Joe Callow helps clients manage and reduce litigation risk and litigation costs.  When litigation arises, he handles and coordinates cases on a national, regional, and local basis.

    Joe primarily works on class action and complex ...

I generally end our long-running KMK Legal Update presentation, 10 Cases Every In House Counsel Should Know, with a case about sports. This year, I’m concluding with a blog about the case of Phee v. Gordon & Niddry Golf Club from across the pond in Scotland. Golfing accidents unfortunately produce a lot of litigation in the United States and abroad, but for lawyers, they also provide a good summary of negligence law and tort concepts which are helpful to review.

G-Day is May 25, 2018, the day when the European Union’s General Data Protection Regulation (“GDPR) is set to go into effect.  Even though the Regulation has been approved and available for review for more than a year, most companies are still working to determine whether GDPR applies and, if so, how to become GDPR compliant.  The litigators from KMK’s Cybersecurity and Privacy Team have prepared a Legal Alert which helps companies answer both questions. 

Last week, the D.C. Circuit joined an increasing number of federal courts applying a broad interpretation of the degree of harm required to satisfy Article III standing and expanding the holding of last summer’s Spokeo, Inc. v. Robbins, 136 S. Ct. 1540 (2016).

Last week, the Eighth Circuit Court of Appeals rejected the district court’s approval of the class action settlement in the Target data breach litigation. See In re Target Corp. Customer Data Sec. Breach Litig., 2017 U.S. App. Lexis 1767 (8th Cir. Feb. 1 2017). 

Last week, the Ninth Circuit deepened the divide among the Circuits regarding ascertainability in class certification. In Briseno v. ConAgra Foods, Inc., 2017 U.S. App. Lexis 20 (9th Cir. Jan. 3, 2017), the Ninth Circuit rejected the Third Circuit’s line of authority (see Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013) and Byrd v. Aaron’s Inc., 784 F.3d 154 (3d Cir. 2015)) which requires plaintiffs’ counsel to show ascertainability by demonstrating an administratively feasible and reliable method to determine class membership at the class certification stage.

Two Courts of Appeals have issued decisions during the past week related to cybersecurity and data retention which anyone who maintains electronic data and personal information should read.

In a reversal of precedent, a divided National Labor Relations Board (“NLRB”) held yesterday that employees have a right to use their employers’ email systems for non-business purposes, including statutorily protected communications regarding the terms and conditions of their employment and regarding union organizing efforts. See Purple Communications, Inc., 361 NLRB No. 126 (December 11, 2014).  The NLRB’s ruling stemmed from a case brought by the Communications Workers of America union after it unsuccessfully attempted to organize employees of Purple Communications, Inc., a company that provides interpreting services for the deaf and hearing-impaired.  The union argued that prohibiting the company’s workers from using the company’s email system for non-business purposes and on behalf of organizations not associated with the company interfered with the CWA’s organizing efforts. 

While most ERISA litigators are anxiously awaiting the Supreme Court’s decision in Fifth Third Bancorp v. Dudenhoeffer, (Sup. Ct. Dkt. 12-741), they should also be paying close attention to the Supreme Court’s upcoming decision in Halliburton v. Erica P. John Fund, Inc. (Sup. Dkt. 13-317). 

Searching for the right team to help in a litigation matter often means looking for the Goldilocks firm.  As companies and in-house counsel are under increasing pressure to find quality representation at lower costs, there are lots of paper proposals and tough decisions to make.  Big Law has high overhead that comes with multiple offices and mergers/expansion, which translates to higher billing rates (with multiple firms now having partners billing at over $1,000/hr) and more bodies on matters.

Yesterday, the Supreme Court issued its long awaited decision in American Express v. Italian Colors Restaurant.  The decision is a must read for every business. 

Blog Contact:  Joseph Callow, Litigation Partner
jcallow@kmklaw.com or 513.579.6419

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