Minding Your Business

Proskauer’s perspective on developments and trends in commercial litigation.

Timing is Everything: NY Commercial Division Updates Rule on Trial Length

On March 27, 2017, the Commercial Division of the New York Supreme Courts updated its rule on trial length, giving judges the express authorization to impose time limits, at their discretion, on different phases of trial. The goal of this amendment, first proposed by the Commercial Division Advisory Council in October 2016, is simple: to promote shorter, more efficient trials. Continue Reading

Court Dismisses “Phantom Markdown” Suit against Saks

On March 22, the U.S. District Court for the Southern District of California dismissed a putative class action against Saks Inc. alleging that Saks advertised “phantom markdowns” of Saks-branded products. The Plaintiff alleged that he purchased a pair of men’s shoes “valued” by Saks at $145 but sold at a discounted price of $79.99. The plaintiff claimed that he only bought the shoes because he believed he was receiving a significant value and that Saks’s $145 market price was false and misleading. Continue Reading

Don’t Let New Technology Cloud Your Legal Judgment

Law firms are slowly but steadily moving to the cloud. According to an American Bar Association report, 37.5% of lawyers reported the use of web-based software services or solutions in 2016, up from 31% in 2015, and 30% in 2014. A recent decision from a federal court in Virginia, however, highlights the substantial risks associated with the use of cloud technology. In that case, the court held that an insurance company had waived any claim of privilege with respect to its claims and investigation files, which had been posted to a publicly-accessible, non-password protected cloud account. Moreover, the court held that the privilege had been waived despite the fact that it was the insurer’s investigator, not the insurer, who had decided to use the unsecured account. The case serves as a warning that use of cloud technology demands that attorneys understand this new technology, and how their clients and agents are using it, in order to protect confidential information maintained there. Continue Reading

Colorado Court Sends Shepherds’ Wage-Fixing Antitrust Suit Out to Pasture

Defendants in a putative class action lawsuit alleging wage fixing antitrust claims no longer need to count sheep to rest easily. A district court judge in Colorado recently denied plaintiffs’ request for leave to amend, effectively dismissing claims brought by a group of shepherds working under the H-2A Visa Program, which covers agricultural guest workers. In Llacua et al. v. Western Range Association et al. report and recommendation adopted, plaintiffs alleged that two trade associations representing sheep ranchers, and some of their members, conspired to suppress the wages paid to shepherds in violation of the Sherman Act. The Court adopted the Magistrate Judge’s ruling that plaintiffs failed to plausibly allege a conspiracy and failed to allege facts sufficient to warrant granting leave to amend their Complaint a third time, describing the Magistrate Judge’s opinion as a “masterful[] and cogent[]” analysis of the substantive allegations. Because this is one of the first judicial opinions following the DOJ and FTC’s recent announcement of an initiative to prosecute wage fixing claims, the Magistrate’s report and recommendation provides important guidance for associations and their members facing similar claims. Continue Reading

Understanding Your Employment Practices Liability Insurance Coverage

Employment Practices Liability Insurance (EPLI) policies typically provide coverage for both the company and its employees for certain defined “wrongful employment acts,” such as discrimination, illegal harassment, retaliation and wrongful termination. Navigating an EPLI policy can be tricky. Proskauer’s Anthony Oncidi and Bradley Lorden analyze the pros and cons to assist employer policyholders in procuring the type and amount of EPLI coverage they need and want.

Read the full Thomson Reuters article here.

Data Breach 101, Part I: Data Breach Notification Laws

In 2017, there are few words that make companies – and their counsel – shudder more than “data breach.” Recent high-profile breaches and the resulting litigation have shown that breaches can be embarrassing, harmful to a company’s brand, and extremely expensive to handle – both in terms of response costs and, potentially, damages paid to the affected individuals, third parties, and regulators. As headline-grabbing security incidents increasingly become a fact of life, litigators need to develop familiarity with the issues associated with data breaches so they can be prepared to walk their clients through the aftermath. This is the first in a series of blog posts about what commercial litigators need to know about data breaches. Continue Reading

Revised ICC Arbitration Rules Go into Effect

On March 1st, the revised Arbitration Rules of the International Chamber of Commerce (ICC) took effect. The revised Rules seek to enhance time and cost efficiency as well as transparency, and will apply to all arbitrations initiated on or after that date. Continue Reading

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