Surety Bonds They’Re Not Just for Construction Projects Anymore P10

FALL 2019

Safety in Numbers ...Most Insurance Implications Independent Physicians Can’t of Artificial Intelligence Afford to Go it Alone Anymore In the Food Industry p4 p 8

Surety Bonds They’re Not Just for Construction Projects Anymore p10

WHAT ARE THE DAMAGES? Nuances of REMEDIES IN Defending NON-COMPETE Cases Involving CASES Transportation Network p12 Companies p14 SEA AD_Hospitality_USLaw Network_07-31-19.pdf 1 8/1/19 10:36 AM

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“Rip and Tear” Claims: The CGL Policy as Performance Bond FEATURES: By Eric D. Suben, Esq. and Vito John Marzano • Traub Lieberman...... page 2 Safety in Numbers – Most Independent Physicians Can’t Afford to Go it Alone Anymore By Kate Heptig • Rivkin Radler LLP...... page 4 Insurance Implications of Artificial Intelligence in the Food Industry Kent M. Bevan • Dysart Taylor Cotter McMonigle & Montemore, PC ...... page 8 Surety Bonds – They’re Not Just for Construction Projects Anymore John D. Cromie • Connell Foley, LLP and Katherine Cromie • Marsh USA, Inc...... page 10 What are the Damages? Remedies in Non-Compete Cases By Christopher H. Lee • Cooch and Taylor, P.A...... page 12 Nuances of Defending Cases Involving Transportation Network Companies By Crislove A. Igeleke and Kelsey L. Maxwell • Murchison & Cumming LLP...... page 14 Transaction Insurances on International Deals By Douglas W. Clarke, Therrien Couture L.L.P. • Edward Craft, Wedlake Bell LLP Tyson Freeburg, Woodruff Sawyer • Andrew Godfrey, Kelly Santini LLP Andrea Rescigno – Legalitax...... page 16 Discovery challenges in cross-border Litigation and investigations By Drew Macaulay, Consilio ...... page 20

From the Chair’s Desk...... page 1 DEPARTMENTS: Firms On the Move...... page 24 Faces of USLAW...... page 26 Successful Recent USLAW Law Firm Verdicts / Transactions...... page 28 Pro Bono Spotlight...... page 30 About USLAW ...... page 31 USLAW NETWORK SourceBook...... page 34 Spotlight on Corporate Partners...... page 38 ALWAYS ON. ALWAYS THERE.

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Eric D. Suben, Esq. and Vito John Marzano, Esq. Traub Lieberman Straus & Shrewsberry LLP

Courts nationwide have grappled with was discovered that something was wrong “occurrence” of “property damage” such coverage for “rip and tear” claims like the with the wiring, now hidden by the beau- that would be covered under the standard one against Zappo in the hypothetical tiful terrazzo floor. State University de- CGL insuring agreement, where “property below. The purpose of this article is to in- manded that Zappo fix the wiring or face damage” means physical injury to tangible troduce and discuss the key concepts and legal action. Zappo would have to break property of a third party and “occurrence” rationales courts employ when addressing through the floor to fix the wiring, however. means an “accident, including continuous such claims, apply them to the hypothetical, Zappo forwarded State University’s de- or repeated exposure to substantially the and to ask whether modern trends in this mand to its liability insurer. Jim Juster, the same general harmful conditions.” area risk transforming the CGL policy into claims professional, was pretty certain that Most state courts recognize a well-set- a performance bond. there was no coverage for Zappo’s faulty tled rule that the issuer of a commercial workmanship. After all, a liability policy general liability policy is not a surety for THE HYPOTHETICAL is not a performance bond! What got Jim a construction contractor’s defective work Zappo Electrical Contracting Corp. scratching his head, though, was the dam- product.1 Initially, this rule was based on wired the new student union building age to the terrazzo floor. The floor was the view that the standard CGL insuring at State University, including laying wire third-party property being damaged due agreement was never intended to pro- under the computer lab. After the wiring to the Zappo’s fault. Could that portion of vide indemnification to contractors from was completed, other trades closed the State University’s claim possibly be covered? claims that their work product was defec- walls and put down a beautiful terrazzo tive. Rather, the “purpose of a commercial floor, covering the wires. Later, the furni- PROPERTY DAMAGE CAUSED general liability policy . . . is to provide cov- ture and computer equipment were moved BY AN OCCURRENCE erage for tort liability for physical damage in, but the computers would not boot up. This first question to consider in any to others and not for contractual liability After a round of nondestructive testing, it “rip and tear” claim is whether there is an of the insured for economic loss because USLAW www.uslaw.org 3

the product . . . is not what the damaged defective work, with variations noted below. Assuming coverage is governed by the law [party] bargained for.”2 Of the standard “business risk” exclu- of a state holding that the insured’s faulty This economic loss doctrine stands sions, the one barring coverage for damage workmanship constitutes the “occurrence,” on the principle that purely economic loss to “impaired property” may be the closest the question still remains whether deliber- (i.e., loss of the benefit of the parties’ bar- fit with most “rip and tear” scenarios, be- ate destruction of the terrazzo floor equates gain) is contractual in nature and does not cause (as in the hypothetical) the claim to covered “property damage.” The answer equate to tort damages for physical injury arises not from property that is physically will likely be yes based a literal reading of to tangible property. In other words, courts damaged but rather from non-defective the policy wording because—though inten- declining CGL coverage on this basis take work that must be removed to afford access tionally done—ripping up the floor consti- the view that such claims are fundamentally to faulty work needing repair. Notably, the tutes physical injury to tangible property contractual in nature and as such can never typical exclusionary wording requires that of a third party (State University). The arise from an “occurrence,” defined as an damage to “impaired property” arise from impaired property exclusion will not apply “accident.”3 This is not a universal view, “a defect, deficiency, or inadequacy” in the on these facts because the floor is physically however, with other courts reasoning that insured’s work or from the insured’s “delay damaged (albeit intentionally). The “on- the crucial inquiry is not whether the claim or failure to perform a contract or agree- going operations” exclusions will not apply is based in tort versus contract, but rather ment according to its terms.” This wording because the insured’s work on the floor whether the claim is one for damages aris- dovetails with those court rulings holding has been completed. Coverage will not be ing from “property damage” caused by an that the contractual nature of the claim barred by the “your work” exclusion or the “occurrence.”4 does not preclude an “occurrence” based “sistership” exclusion because the terrazzo Many courts also recognize an “oc- solely on the insured’s faulty workmanship. floor is not Zappo’s work. currence” of “property damage” where Also, potentially relevant are the stan- Although some courts today would the insured’s defective work product is a dard exclusions barring coverage for “prop- adopt these principles to find coverage mere component of and causes damage erty damage” to property arising from the for “rip and tear” claims, the question re- to a larger structure.5 Application of this insured’s ongoing operations, including mains whether this result is ultimately to be rule requires a finding that the insured’s damage to property that must be restored, preferred. Enforcing “property damage” defective work is having a deleterious effect repaired, or replaced because the insured’s coverage for non-accidental destruction of on other components of the construction, work was incorrectly performed on it. non-defective property ignores two venera- which is the “occurrence” rather than the These exclusions could bar coverage for ble insurance tenets, fortuity and the moral defective work itself. While courts con- “rip and tear” claims to the extent the in- hazard. Clearly, neither faulty workman- tinue to differ on whether the insured’s sured’s defective work was detected before ship nor the deliberate destruction of prop- faulty workmanship can constitute an “oc- all of the insured’s work was completed. erty is fortuitous. While the notion of the currence” in itself, it is virtually universal to In addition, “rip and tear” facts may moral hazard may sound quaint in today’s require at least the possibility of third-party invoke the exclusion for property damage world, it cannot be gainsaid that allowing “property damage” to trigger coverage.6 to “your [i.e., the named insured’s] work,” a contractor to obtain coverage for faulty Under both constructions of an “occur- defined to include both operations per- workmanship incentivizes shoddy work (at rence,” then, mere repair or replacement formed by and materials supplied by the least absent market forces). When courts of the insured’s own defective work does insured. Pursuant to this exclusion, cov- following this trend continue lip service to not constitute covered “property damage” erage would be barred for damage to the the old saw that a CGL policy is not a perfor purposes of CGL coverage; there must insured’s work but not to other property formance bond, the maxim rings hollow be involvement of other property.7 damaged by the insured’s work. indeed. Finally, the so-called “sistership” exclu- “BUSINESS RISK” EXCLUSIONS sion bars coverage for costs incurred to with- In addition to considering whether draw the insured’s work or product from the “rip and tear” expenses are within the CGL market “or from use.” It is at least arguable Eric D. Suben is a partner insuring agreement, consideration must that removing the insured’s defective work in the New York office of also be given to whether the policy’s “busi- “from use” by ripping it out of the overall Traub Lieberman Straus & ness risk” exclusions apply to bar coverage structure is within the exclusionary wording. Shrewsberry LLP. His prac- for expenses occasioned by the insured’s tice focuses on insurance cov- defective work. The overall effect of the RESOLVING ZAPPO’S CLAIM erage issues in areas including “business risk” exclusions is to bar coverage Having reviewed the key concepts, construction defects, products for repair and replacement of the insured’s what can we say about Zappo’s claim? liability, environmental and toxic tort, marine, and professional liability. He is a frequent writer and speaker on coverage issues. 1 See, e.g., Carl E. Woodward, L.L.C. v. Acceptance Indemnity Insurance Co., 743 F.3d 91 (5th Cir. 2014); George A. Fuller Co. v. United States Fid. & Guar. Co., 200 A.D.2d 255, 613 N.Y.S.2d 152 (N.Y. App. Div. 1994), lv. denied 84 N.Y.2d Vito John Marzano is an as- 806, 645 N.E.2d 152 (N.Y. 1994). 2 Hartford Acc. & Indem. Co. v. Reale & Sons, 228 A.D.2d 935, 644 N.Y.S.2d 442 (N.Y. App. Div. 1996). See also, Three sociate at Traub Lieberman Sombrero, Inc. v. Scottsdale Ins. Co., 28 Cal. App. 5th 729 (4th Dist. 2018). Straus & Shrewsberry LLP in 3 Keystone Filler & Mfg. Co., Inc. v. American Mining Ins. Co., 179 F. Supp. 2d 432 (M.D. Pa. 2002), aff’d 55 F. App’x. New York, where he practices 600 (3d Cir. 2002). 4 Desert Mountain Properties Ltd. Partnership v. Liberty Mut. Fire Ins. Co., 236 P.3d 421 (Ariz. Ct. App. 2010), aff’d 226 in the areas of insurance cov- Ariz. 419 (2011). erage, general liability, prem- 5 See, e.g., Apache Foam Products Div. of Millmaster Onyx group of Kewanee Industries, Inc. v. Continental Ins. Co., 139 ises liability, labor law, and A.D.2d 933, 528 N.Y.S.2d 448 (N.Y. App. Div. 1988). appellate procedure. 6 Dewitt Cons. Inc. v. Charter Oak Fire Ins. Co., 307 F.3d 1127 (9th Cir. 2002). 7 OneBeacon Ins. Co. v. Metro Ready-Mix, Inc., 242 F. App’x. 936 (4th Cir. 2007) (applying Maryland law). 4 www.uslaw.org USLAW Safety

Mostin Independent Numbers Physicians Can’t Afford to Go it Alone Anymore

Kate Heptig Rivkin Radler LLP Almost every aspect of healthcare in super-sized provider entities when now, through an underlying desire to help peo- the United States is in a state of transition. more than ever, innovation, scale, and ple. While the stated goal is admirable, and While popular media tends to zero in on a data/metrics are critical to providing effec- the value of physicians’ contributions to few hot topics, such as the Affordable Care tive patient care? Enter the independent their community really goes without saying, Act (ACA) and the rising cost of coverage for physician super-group, a business model the reality is that the practice of medicine is consumers, the conversation often leaves out that lies somewhere between complete in- a business. All professionals, including phy- one critical contingency of the healthcare de- dependence and employment; namely, the sicians, have to make a decision between livery system – providers. Healthcare systems consolidation of multiple solo practitioners employment and business ownership. The are consolidating, non-traditional parties are or small practice groups into a larger but benefits of business ownership may make making inroads into the space, and models still physician-owned medical group. owning one’s own practice more attractive; of patient care and reimbursement are there is, theoretically, more autonomy in moving away from the traditional fee-for- BUSINESS COMPETITION AND THE decision making, increased flexibility in service model toward value-based care. INDEPENDENT PHYSICIAN work hours and greater control over eco- How can an independent physician Many physicians will tell you that they nomics. Some physicians, however, prefer possibly compete with hospitals and other were called to the practice of medicine to focus on patient care instead of running USLAW www.uslaw.org 5

a business and seek more certainty around ers of complete independence need to uniform quality, compliance and clinical their compensation, choosing, as a result, reconsider their stance,” says Dr. Simon standards, protocols, and procedures. to be an employed physician. Prince, founder and CEO of PRINE Health And perhaps the most obvious ques- The Centers for Medicare & Medicaid Medical Group, PLLC, a newly formed New tion on the mind of a physician who is con- Services (CMS) began to emphasize val- York medical group focusing on primary sidering joining forces with some of his or ue-based healthcare approximately 10 years care and chronic kidney disease. her potential competitors is, what happens ago. The idea was to reward healthcare The impetus for the creation of PRINE if it doesn’t work out? The unwinding of a providers with incentive payments for the was this desire to remain independent but medical practice requires working through quality of care they give to their patients, also competitive in the market. many of the same issues described above, as opposed to the fee-for-service model, “I have explained to my fellow docs, but in reverse order. But on this side of the which compensates physicians based on just like the movie, ‘Almost Famous’ process, there are patient relationships and the frequency and type of their patient vis- – we may need to aspire to be ‘Almost continuity-of-care issues to consider. There its. In the years that followed, there were Independent,’” he says. “Now, it is about also could be potentially significant costs in- further developments in value-based care, consolidating in a more physician-friendly, curred to put things back the way they were, including increased incentives for the use kinder, gentler manner. It is about achieving or just walk away to become employed by a of electronic health records (EHR) and the enough scale to have a voice, enough infra- larger provider. Additionally, restrictive cov- ACA’s emphasis on quality care through structure to support operations, and just enants, which serve to protect the members incentive-based rewards to healthcare pro- enough independence to keep on going.” of the group from unfair competition when viders. Private insurance carriers also fol- a member departs the practice, may come lowed suit, creating provider contracts and CHALLENGES AND OPPORTUNITIES into play so it may be impractical to resume models of reimbursement that emphasized A larger medical practice, comprised one’s practice in its prior form after leaving quality over quantity of care. of physician owners, permits those physi- the new group. In order for providers to demonstrate cians to come together to achieve more ef- Physicians and their advisors must go quality patient care, they must be able to ficiency, better quality of care, greater payer into the process of consolidating into a provide the payers with evidence of out- reimbursements, and better work-life bal- newly formed super-group with their eyes comes. Capturing and manipulating data ance. These physicians can use each other wide open. The physicians need to be into usable forms, and having sufficient as a clinical resource, covering each other’s mindful of each other’s perspectives, expe- sample sizes to produce meaningful and patients both in the office and while on-call riences, and concerns, and all parties must statistically significant results, each becomes in hospitals. A larger number of aligned be patient, as the process will take months critical as a result. How can a solo practi- providers affords significantly more lever- from start to finish, and perhaps even a year tioner or small independent medical prac- age when negotiating reimbursement rates or longer. The governing documents (e.g., tice possibly compete for reimbursements with payers and vendors. The increased rev- shareholders agreement, limited liability with hospitals and larger healthcare con- enue brought into the practice through a company agreement) should be carefully glomerates, which have significantly more combination of greater patient volume and thought through and discussed among the resources, if the solo practitioner is also better reimbursement rates then allows the parties, and must be detailed in addressing responsible for clinical patient care during practice to invest in better technology, such common issues that arise among business office hours and administering an office? as a more sophisticated EHR system which owners, including the dissolution of the And it’s not just hospitals and other can more easily synthesize patient data to business. Both strong leadership and the consolidated healthcare providers who are demonstrate quality to CMS and private development of trust among the group of creating this competitive pressure. In recent payers. In addition, the practice can sup- new physician partners are critical to the years, organizations not traditionally associ- port additional personnel who can focus success of the venture. The physicians must ated with healthcare have disrupted the mar- on things like clinical care coordination, be able to view the formation process, and ket. For example, in January 2018, Amazon, billing and collections, and compliance/ make the necessary decisions along the way, Berkshire Hathaway, and J.P. Morgan an- risk management. simultaneously through their own lens as nounced that they wanted to do something The benefits of joining a consolidated an individual and through the lens of the about the problem of rising healthcare costs but autonomous medical practice does, how- entity as a whole. for their 1.2 million combined employees, ever, come with certain costs, and doing so While it may be easier or more com- as well as the perceived lack of care improve- requires some risk tolerance. Combining fortable to maintain the status quo, it is ment. This trio created Haven. While details separate legal entities in any industry re- becoming increasingly clear that failing to remain somewhat vague, many in healthcare quires the engagement of professional advi- address the realities of a more competitive are expecting Haven to build a risk-based, sors, such as attorneys and accountants, to provider environment may actually result in clinically integrated network of providers work through issues such as employment/ costlier outcomes for providers. and perhaps also to contract directly with payroll; employee health and welfare and re- hospitals as a payer. tirement benefits; tax and accounting matters; and indemnification among the parties Kate Heptig is a partner THE “ALMOST INDEPENDENT” MODEL for potential historical liabilities. This can be in Rivkin Radler LLP’s Physicians often cling to independence an even more complex undertaking in the Corporate, Health Services, well beyond the point that it makes finan- medical industry. In addition to the areas and Tax Practice Groups. She cial sense to do so, fearful of becoming a mentioned above, the movement to a new focuses on transactional tax cog in a hospital’s wheel of employees. The legal entity requires the practice to: enter law and executive compensa- physician-owned super-group is the some- into new payer contracts; re-credential its tion; general business law re- times-overlooked opportunity that may providers with payers and potentially health- lating to corporations, LLCs, combine the best of both worlds. care facilities; integrate existing patient med- and partnerships; and ERISA/employee benefits “Now, even the most ardent support- ical records into a unified EHR; and adopt matters, a specialty in which she earned her LLM. 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Insurance Implications of Artificial Intelligence in the Food Industry Kent M. Bevan Dysart Taylor Cotter McMonigle & Montemore, PC

According to the Pew Research Center, try need to be well-versed in this technology legal liability. Here’s how: Artificial Intelligence (AI) already affects as it develops. the lives of more than half the world’s pop- But what is AI, exactly? Simply put, AI BENEFITS OF AI IN THE ulation in some way, and its influence is is a term used to describe when machines FOOD INDUSTRY continuing to spread. This is especially true or computers mimic human cognitive abil- Food industry companies operate in of the food industry, where AI is being used ities, including learning and problem solv- an environment with tight margins and the in many applications to increase food pro- ing. In the context of the food industry, and looming, ever-present threat of crisis. cessing safety and efficiency. Insurers and specifically pertaining to insurance matters, “Every year there are deaths and insurance lawyers who serve the food indus- AI can reduce the likelihood of claims and there’s significant financial damage to the USLAW www.uslaw.org 9

overall industry as a result of these situa- further distribution, contact customers, do first addressing the issue of whether a first tions,” according to Mark Leblanc, head a press release, and essentially cut it off at party property policy provides coverage of crisis management in North America its knees before it gets out of control,” said against loss of computer data. for Swiss Re Corporate solutions. “One of Leblanc. Another concern is the possibility that the biggest challenges we face in this whole For example, police in Lufkin, Texas, AI-driven machines and processes can take space is that the entire market is driven by recently identified a teen who was seen in a human jobs. Indeed, one of the primary human error. Accidents happen, food pro- viral video shared on social media licking a benefits of AI is that it can create efficien- cessing facilities are messy places.” tub of Blue Bell ice cream and then putting cies that would reduce or eliminate the AI can help reduce liability for food it back on a store shelf in a local Walmart. need for food companies to hire people companies in the areas of quality control By using AI-driven search processes, Blue in the first place. This is offset somewhat and crisis management. Bell was able to identify the store where by the fact that AI can actually increase the the incident occurred and coordinate with demand for jobs pertaining to the design, Quality control Walmart and local law enforcement to find control, and maintenance of such technol- AI can be used in conjunction with robot the contaminated ice cream and appre- ogy. However, these jobs tend to be high- technology to ensure the safety of food hend the culprit. The teen now faces seri- er-skilled and more specialized than the products before they leave the assembly line ous charges related to food tampering. As jobs that AI replaces, so it’s not a one-to-one and reach consumers. Examples include: a result, both Blue Bell and Walmart were ratio in terms of jobs lost compared to jobs • Detecting microscopic bacteria and for- able to avoid a public health and public re- created by AI in the food industry. eign contaminants such as metals and lations crisis before it seriously affected the plastics in food products before they value of their brands. HOW FOOD INDUSTRY COMPANIES leave assembly lines. This includes sam- Another example of AI being used to CAN GET STARTED WITH AI ple testing to find contaminants in terms avoid a crisis was when Amazon pulled an Food companies that wish to explore of parts per million and even parts per energy drink off the market after someone how they can benefit by implementing AI billion, and searching large batches in wrote on social media, “Gave me energy technology should first consider what their ways that would be impossible for hu- for my workouts but also wreaked havoc on specific goals are and how AI can help them mans to achieve. my digestive tract.” Amazon was using AI to achieve them. They should also consider • Picking and properly labeling containers track social media related to its products what the potential costs would be and de- while also verifying that the correct label and was thus able to intervene quickly be- termine whether the potential benefits are is used so that people with allergies can fore a crisis developed. worth the risk. It would also be advisable to avoid food products that might be dan- hire a consultant or expert in AI with spe- gerous to them. AI and robots can check DRAWBACKS OF AI IN THE cialized experience in the food industry more than 200 labels per minute virtually FOOD INDUSTRY who can provide guidance and oversee the error-free, far surpassing the capabilities In addition to the benefits it provides, process of implementing AI within their or- of human quality control. AI also comes with several disadvantages. ganization. Finally, there should be a clear • Using facial recognition to trace livestock First, it’s not infallible, and computers, ro- means of measuring success which should throughout a food processing facility to bots, and software programs always have be periodically reviewed by the company’s identify those which might have a dis- the possibility of malfunctioning, breaking top-level executive management. ease and separating them before they’re down, or simply not working as intended. The rise of AI has many implications turned into food products. When this happens, fixing the problem for the food industry. By being well-in- • Ensuring personal hygiene in food ser- might not always be easy and can often formed of the benefits, drawbacks, and vice and manufacturing settings by using be difficult. Furthermore, machines may challenges of AI, food industry companies, cameras, facial-recognition, and ob- overlook subtle nuances in situations and insurers, and insurance lawyers can make ject-recognition software to determine if contexts that would be readily apparent to the best decisions for themselves and their employees are in compliance with food human observers. organizations. safety regulations. I had a case involving a meat packing • Cleaning processing equipment using plant in Dodge City, Kansas, which pur- Clean-In-Place (CIP) technology to de- chased a computer system to track beef in- tect contaminants inside of machines ventory electronically. The system failed to where it would be undetectable by retain electronic data fed into it and as a Kent M. Bevan is Of Counsel human beings and then cleaning it with- result, the company sustained a decrease in at Dysart Taylor Cotter out having to dismantle the machine. orders. They submitted a claim to their in- McMonigle & Montemore, surance company for business interruption. PC in Kansas City, Missouri. Crisis management The court observed that there could be His practice focuses on insur- AI-driven processes can reduce the po- questions, including was there “direct phys- ance law and litigation. Kent tential for human error and can also reduce ical loss” to the electronic data allegedly regularly writes alerts with the likelihood of crises or lessen their neg- collected but which never existed in usable analyses of recent court deci- ative impact when they occur. form, was the data lost, or did it ever exist? sions involving insurance litigation which you “What they’re beginning to use it (AI) The 10th Circuit held that there was no cov- can view at https://www.dysarttaylor.com/news- for is a way to trace where the product is erage for the business interruption claim events/alerts. You can view his expanded bio at going, people’s reaction to that product, so because the decrease in plant efficiency was https://www.dysarttaylor.com/our-people/kent-m- that they can nip the issue in the bud, and not a complete “suspension” of their oper- bevan or contact him at [email protected]. if need be, the company can proactively in- ations. Our client saved over $2 million in tervene and either stop the product from claimed damages. The case was one of the 10 www.uslaw.org USLAW

Surety Bonds They’re Not Just for Construction Projects Anymore

John D. Cromie • Connell Foley LLP and Katherine Cromie • Marsh USA, Inc.

In today’s increasingly competitive nies that must post security for their finan- another that a third party will perform a commercial environment, companies are cial obligations. Surety bonds in the form contract or an underlying obligation. More required to manage a variety of competing of a lease guarantee bond can be used to specifically, a surety bonding arrangement and often substantial financial obligations. guarantee a variety of obligations where let- involves a promise by which a surety, i.e., an In many instances, companies are often re- ters of credit or cash escrows are currently insurance company, becomes accountable quired to post security for these financial utilized. Surety bonds offer several advan- to another person, i.e., the obligee, for commitments. Required security can take tages over letters of credit, including the the debt, obligation or conduct of a third the form of a variety of security instru- following: (i) surety bonds afford potential person, i.e., the principal. As a three-party ments, including cash escrows, letters of cost savings; (ii) surety bonds are typically agreement, the benefit of the bond inures credit or surety bonds. Increasingly, surety classified as off-balance sheet or contingent to the obligee, but allows the principal to bonds, which have been traditionally used liabilities; and (iii) surety bonds offer better obtain work, or to satisfy statutory or legal in the construction industry, are proving to protection for the issuing company. requirements while also serving as a form of be a flexible and cost-effective alternative to A surety bond is defined as an instru- guarantee when required or needed. cash escrows and letters of credit for compa- ment under which one party guarantees to Surety bonds can take two broad USLAW www.uslaw.org 11

forms: contract bonds and commercial and the surety. Rather, the principal retains in the future. Such a clause is advantageous surety bonds. Contract bonds involve the all responsibilities as it relates to the obli- because circumstances change. guarantee of performance of an underlying gee. In addition, the premium charged for In order to determine whether a bond contract and payment to subcontractors, a surety bond is a fee for services, including can be cancelled or the surety needs to suppliers and laborers. For construction investigating the applicant and handling withdraw, the bond form must be reviewed project owners, completion of the project the transaction. From an underwriting per- closely. It usually indicates how the surety within the budget is the primary goal. When spective, there is a fundamental assumption can terminate its liability. For example, some it comes to limiting the financial exposure that there will be no loss. If the surety pays bonds are cancelled by the surety, giving the of contractor default, choosing the best a loss on a bond, it will seek a remedy or obligee a 30-, 60- or 90- day written notice via form of risk management can make a big recourse against the principal under its in- certified mail. If the bond does not include difference. Contract surety bonds are most demnity agreement and expect to be made a procedure, it will reference laws or statutes often issued in the context of bid bonds, whole again. that contain the cancellation requirements. performance bonds and payment bonds. A Another key element is that suretyship Some bonds are simply non-cancelable and performance bond protects the owner, i.e., underwriting principals are more analo- the exposure remains with the surety until the obligee, from the non-performance gous to banking than insurance. A surety the obligation has been met or the surety has and financial exposures, including liens bond is underwritten by the surety company remedied a default. The obligation of a bond for non-payment should the contractor on the credit worthiness and the capacity of requires the partners to possess a knowl- default. The labor and materials payment the principal to fulfill the underlying obli- edge of the law governing the bond, the bond protects subcontractors, laborers, and gation. The surety company will also only bond form, and any regulation or statute(s) material suppliers against non-payment of entertain clients and principals who have promulgated by the enforcing authority. If the contractor. the character and management integrity a bond is required by statute or ordinance, Commercial bonds guarantee perfor- to fulfill the primary obligation. More spe- it is generally impossible to understand the mance of obligations that generally do not cifically, in a typical surety underwriting surety’s obligation without studying the un- arise from contracts and include several dis- scenario, the surety assesses the principal’s derlying law. tinct classes of bonds: contract bonds, court financial capacity, capabilities and char- Surety bonds in a commercial con- bonds (both judicial and fiduciary varieties), acter to perform its obligation under the text are increasingly a viable alternative license and permit bonds, and federal and indemnity agreement. Depending on the especially for businesses that maintain public official bonds. Beyond that, there are type and term (length) of the bond, cer- large cash deposits and where the firms all kinds of miscellaneous bonds, including tain prerequisites may be more important are required to post security for financial lease bonds. Lease bonds, although under- than others. For example, due to the pure obligations such as lease obligations, utility written as a miscellaneous commercial surety financial guarantee language of lease guar- deposits and/or environmental financial bond, serve essentially as a financial guaran- antee bonds, the principal’s creditworthi- assurances. Similarly, a surety bond can be tee required by landlords. ness and financial strength is an absolute used by any business or company that needs A common scenario occurs when a prerequisite for the surety underwriter to to post counter-party security for financial lessee consents to a very long-term com- be comfortable that the principal is and obligations tied to insurance programs. mercial real estate lease agreement and will continue to be profitable for the num- Treasurers, CFOs, risk managers and corpo- the obligee i.e., the landlord, has concerns ber of years that the bond will be in effect. rate counsel should be mindful of the flex- regarding the lessee’s operational continu- Typically, for most bonds, surety under- ibility and increasing use of surety bonds ity and financial stability. Lease guarantee writers will need to look at the complete in the commercial arena. While there is an bonds are commonly used where the land- credit profile of the principal, including increase in the issuance of surety bonds in lord is expending significant sums to make but not limited to: company organization both construction and commerce, commer- leasehold improvements in furtherance of chart, including breakdown of ownership; cial surety in particular has expanded sig- a lease to incentivize a tenant to enter into CPA-prepared fiscal year-end financial state- nificantly. Indeed, it is fair to say that surety a long-term lease arrangement. Lease guar- ments; copies of bank lines of credits; and is not just for “construction” anymore. antee bonds are generally drafted to reflect possibly personal financial statements of the specifics of the real estate deal and be- the stockholders in order to assess the over- cause there is a substantial component of all surety risk profile of the principal. financial guarantee risk involved, under- No underwriter ever intends that a John Cromie is a partner writing is critically important. surety bond run on forever. Whatever the with Connell Foley LLP in It is important to remember that surety principal’s obligation is, it should be capa- New Jersey. He is immedi- bonds are not insurance but rather a third- ble of eventual fulfillment in due course. ate past chair of the USLAW party guarantee. One of the key ways surety Surety underwriters cannot be expected to NETWORK, Inc. and chair bonds differ from insurance policies is guarantee any person’s or firm’s financial of Connelly Foley’s Corporate that with insurance there is an assumption responsibility in perpetuity, unless there is and Business Law Group. that losses will occur and the risk is spread full collateral. Therefore, whether or not among many individuals paying experience a bond can be cancelled is an important rated premiums. An insurer typically does underwriting factor to be considered. The Katherine Cromie is a TRAC not expect to recover losses resulting from right to cancel does not mean the surety Associate in the Construction many types of claims. On the other hand, can be excused from liability for acts of its Practice Group at Marsh sureties operate on the general principle principal that occurred while the bond was USA, Inc., New York, New that every bonded individual or business in effect. It does mean, however, by simply York. will perform as promised. There is no spe- giving reasonable written notice to the obli- cific transfer of risk between the principal gee, a surety can be relieved from liability 12 www.uslaw.org USLAW

Remedies in Non-Compete Cases What are the Damages?

Christopher H. Lee Cooch and Taylor, P.A.

Let’s say you’re the CEO of a mid-sized veloped over many years at a cost of mil- tinuing to compete against you. Over the technology company that needed to fill an lions of dollars. Then, you sent her out into next several months, you continued to liti- account executive position in Metro City, the field to begin calling on prospects. All gate the case against her seeking damages USA. You sifted through hundreds of re- was good with the world. and a permanent injunction. At summary sumes, conducted dozens of phone inter- Eight months later, your new employee judgment, the court ruled that your former views and chose three finalists for in-person informed you that she was leaving your employee did indeed breach her contrac- interviews. Upon the conclusion of those company for “personal reasons.” You con- tual obligations. However, the court strug- interviews, you offered your ideal candi- ducted an exit interview, reminded her of gled to determine the proper measure of date the position, which she happily and her contractual obligations and wished her damages and requested further discovery enthusiastically accepted. A week later, she well, disappointed it didn’t work out. Two and a trial on damages only. met with your head of human resources to weeks later, you got a call from a trusted Does this sound familiar? It very well complete the new employee information customer informing you that your former might as this scenario is played out all over packet. In that packet was a document employee was now working for one of your the country each year. Courts have long titled “Confidential Information and Non- competitors, promoting a product that was grappled with the enforcement of non-com- Compete Agreement.” Your new employee in direct competition with the one she pro- pete agreements but often more important read it, denied the assistance of indepen- moted for you. You filed suit against her to businesses and former employees every- dent counsel to review it and signed it, to enforce the terms of the Non-Compete where, courts have struggled to determine along with the numerous other documents Agreement, and the court issued a tem- the proper measure of damages when it is put in front of her. You spent the next six porary restraining order and preliminary determined that an employee has indeed weeks training her on your technology, de- injunction which prohibited her from con- breached their non-compete agreements. USLAW www.uslaw.org 13

Typically, available remedies in breach MONETARY DAMAGES of a breach, typically in the form of a fixed of non-compete agreement cases are in- What happens when injunctive relief is amount. Courts across the country have junctive relief, actual damages and in some insufficient, and the harm has already been found such provisions to be valid when the cases, liquidated damages. done? This is an area that has confounded amount fixed is a reasonable forecast of just courts across the country because assigning compensation for the harm and the harm is INJUNCTIVE RELIEF a monetary damages figure can be incredi- such that it is incapable or very difficult to In our scenario above, the court has al- bly difficult and, in many cases, requires the determine. Importantly, courts have held ready provided some injunctive relief while assistance of experts. that “reasonableness” of liquidated dam- it took the time to reach a decision on the Typically, plaintiffs in non-compete ages is not determined retroactively by their merits. Initial injunctive relief in the form cases are entitled to seek monetary relief in correspondence with actual damages, but of a temporary restraining order is a rem- the amount of lost profits sustained during by reference to the prospective difficulty of edy of very short duration, sometimes less the applicable period of anti-competitive estimating the possible damages that would than 10 days, usually only requiring a plain- behavior. The lost profits must have been flow from a breach. The greater the diffi- tiff to show it has a colorable claim and will contemplated by the parties when the con- culty of estimating damages, the greater the suffer immediate irreparable injury if such tract was formed, must be the probable range of reasonableness used in assessing an order is not issued. result of the breach and must be demon- a liquidated damages provision. However, For a plaintiff to get injunctive relief of strable with reasonable certainty. While the liquidated damages provisions which are longer duration, it will want to move for a lost profits need not be proven with abso- unconscionable, contrary to public policy preliminary injunction. Two almost univer- lute certainty, the evidence must establish a or grossly disproportionate to the loss from sal considerations of courts as to whether basis for the assessment of damages with a the breach will be found unenforceable if a preliminary injunction is appropriate fair degree of probability. In other words, challenged. are that the plaintiff will suffer irreparable speculation on damages will not suffice. Let’s return to our scenario above. harm and there is a substantial likelihood As one can imagine, proving damages Recall that the court found that the for- of success on the merits. Many courts also in breach of non-compete cases could be mer employee did indeed breach her con- require the moving party to demonstrate difficult. Determining the impact of the tractual obligations. Additional discovery that a balancing of the equities tips in its anti-competitive behavior may require commenced, and the court conducted a favor. Jurisdictions across the country dif- extensive investigation and analysis of in- trial on damages only. There are four po- fer in which element holds the most im- formation from non-parties, e.g., the cus- tential outcomes, absent a valid liquidated portance in the analysis. Some states, like tomers, using subpoenas and depositions. damages provision. First, the plaintiff fails New York, find that irreparable harm is the The impact of such investigation might to prove monetary damages but the court most important factor while other states, be hugely detrimental to the relationship issues judgment enforcing the terms of the like Massachusetts, find that success on the between the plaintiff and its customers. non-compete starting on the day of the judg- merits is the most important factor. Often, Moreover, analyzation and interpretation of ment. Second, the plaintiff, through expert preliminary injunctions are issued for the the information received from these investi- testimony, proves monetary damages and duration of the litigation. gations of potentially numerous customers the court issues judgment awarding the dam- The ultimate form of injunctive re- would undoubtedly require the retention ages in the amount proven at trial. Third, lief, the permanent injunction, requires of an expert, or possibly many experts. the plaintiff proves monetary damages and the plaintiff to prevail on the merits and is The cost of proving damages alone might the court issues judgment awarding mon- often issued when a plaintiff cannot be ad- be more than the damages suffered! etary damages and enforcing the terms of equately compensated with monetary dam- In the scenario above, the plaintiff the non-compete. Lastly, and least desirable ages as a result of defendant’s breach. would need to find out how many of its from the plaintiff’s perspective, plaintiff In breach of non-compete cases, plain- customers (and possibly prospective cus- fails to prove monetary damages, the court tiffs will often move for the issuance of a tem- tomers, depending on the language of the deems any further injunctive relief imprac- porary restraining order and a preliminary non-compete) the former employee had tical so, after all the expense and hassle of injunction at the same time. The purpose of prospected and whether any of those cus- litigation, awards plaintiff nominal damages this is to ensure that while the case is being tomers had chosen to abandon the plain- of $1.00. As with any litigation, a careful litigated on the merits, the defendant cannot tiff’s products for the competitors because cost/benefit analysis is critical when decid- cause the plaintiff any further harm than has of such prospecting. Then, the plaintiff ing whether to pursue these types of claims. already allegedly been caused. If the plaintiff would have to determine the dollar value prevails on the merits at trial, the court may those losses represent and present that in- issue injunctive relief which essentially en- formation to the court in such a way that forces the terms of the non-compete starting makes sense. To do so, the plaintiff would as of the day of the order. In the scenario be paying experts significant amounts of Christopher H. Lee is the man- above, if the court found that the plaintiff money while angering its former or pro- aging director of Cooch and prevailed on the merits nine months after the spective customers at the same time. Taylor, P.A. in Wilmington, case was filed and preliminary injunctive re- Delaware. Chris has consid- lief was awarded, the court might very well en- LIQUIDATED DAMAGES erable experience representing force the terms of the non-compete starting Because of the difficulty ascertaining clients in business disputes, on the day it issued its final judgment. The damages in non-compete cases, many busi- construction matters and end result of this is that the breaching party nesses have included liquidated damages professional liability matters. may be bound to the terms of the non-com- provisions in their non-compete agree- Chris has represented clients in all of Delaware’s pete for a duration longer than is set forth in ments. The purpose of these provisions is courts both directly and as local counsel and has the agreement itself. to attempt to predict damages in the event first chair jury trial experience. 14 www.uslaw.org USLAW

Nuances of Defending Cases Involving Transportation Network Companies

Crislove A. Igeleke, Esq. and Kelsey L. Maxwell, Esq. Murchison & Cumming LLP

As ride shares become more preva- DRIVERS ARE INDEPENDENT requires a special skill; (5) the degree of lent, it follows that Transportation Network CONTRACTORS permanence of the working relationship; Companies (TNCs) will become an increas- In California, while a corporation may and (6) whether the service rendered is ingly popular target for litigation. While be held vicariously liable as a principal for an integral part of the alleged employer’s liability issues may be clear-cut in a simple the torts of its agents,1 the converse is true business.3 For TNCs, the important factors auto negligence matter, liability for TNCs that if an individual is deemed to be an favoring an independent contractor desig- becomes murky when drivers engage in sep- independent contractor and not an agent nation include the fact that typically, drivers arate misconduct such as driving under the or employee, vicarious liability will not at- are paid per ride (as opposed to a salary), influence or engaging in sexual assault. In tach. Typically in cases involving TNCs, drivers provide their own vehicles and auto most states, common defenses in these mat- California courts have held that the tort- insurance, and drivers can choose their ters include (1) a lack of an employment feasor’s employment status is a question of own hours and length of work. It is often relationship between the TNC and driver, fact.2 highlighted as one of the perks to working (2) assertions that the driver’s conduct is The factors a court uses to determine for TNCs that drivers can be their own boss outside the scope of employment, and (3) independent contractorship include: (1) and make money on their own terms. assertions that TNCs cannot be held liable the right to control the work; (2) the al- In a recent case involving a Grubhub for negligent hiring or supervision if they leged employee’s opportunity for profit driver who also worked for Lyft and Uber, did not, and reasonably should not have or loss depending on his managerial skill; the Ninth Circuit Court found that the fac- known about prior misconduct. (3) the alleged employee’s investment in tor of at will termination does not weigh equipment or materials required for his in favor of an employment relationship task; (4) whether the service rendered because the right was mutual.4 In further USLAW www.uslaw.org 15

support of a defense to the control argu- tors to consider include whether the in- comprehensive background checks on po- ment, the Ninth Circuit held that a mutual cident occurred during working hours9 tential drivers to ensure that any potential termination provision with 30 days’ notice and whether the alcohol consumption was past misconduct is known prior to permit- and a one-year term was consistent with an done in a manner which benefitted the ting the individual to become a driver. independent contractor relationship be- employer.10 In the cases of sexual miscon- cause “the designated impermanency of the duct, factors to consider include whether ADDITIONAL CONSIDERATIONS relationship supports a finding of indepen- the TNC app was in use at the time of the REGARDING PUNITIVE DAMAGES dent contractor status.”5 That being said, assault11 and whether the sexual assault is In certain circumstances, an employer California cases have cited factors such as determined to be incidental to the opera- may be liable for punitive damages based the company controlling rates and routes, tion of the business.12 upon an employee’s wrongful actions such and imposing rules regarding the cleanli- as when the employer had advance knowl- ness of vehicles as well as prohibited contact TRANSPORTATION NETWORK edge that the employee was unfit, the em- with customers as indicative of an employee COMPANIES CANNOT BE HELD ployer expressly authorized or ratified the relationship.6 LIABLE FOR NEGLIGENT HIRING conduct or the employer is personally guilty Alternatively, in states such as Nevada, WHERE A DRIVER DOES NOT HAVE A of oppression, fraud or malice. drivers for TNCs are classified as indepen- KNOWN HISTORY OF MISCONDUCT A common defense to suits that allege dent contractors working commercially A third defense TNCs may rely on in driver misconduct is that the Plaintiff’s when they carry paying passengers. As such, cases of driver misconduct is the defense claims arise solely from the misconduct of TNCs have a benefit from the outset that that the company should not be liable for the driver. Thus, employers should take there is no employer/employee relation- negligent hiring where there is no known prompt steps to stop the behavior to avoid ship presumed. 7 history of misconduct. For example, in the perception of inadequate investigation. As various jurisdictions differ on this California in the Doe v. Uber Techs., Inc. By ride share companies promptly respond- issue, TNCs should monitor case law across matter, the Court granted Uber’s motion ing to allegations of driver misconduct , the country and weigh the options of ad- to dismiss as to one driver when Plaintiffs they can avoid exposure to liability. justing policies to further support the po- did not allege that anything existed in the sition that the drivers are independent driver’s background that Uber knew or CONCLUSION contractors in the states where the issue is a should have known and that should have As Uber, Lyft, and other TNCs con- question of fact. prevented Uber’s approval of the driver.13 tinue to increase in popularity, so does the However, the motion to dismiss was denied litigation surrounding their use. One would DRIVER’S CONDUCT IS OUTSIDE as to the second driver where a 7-year back- be amiss to simply consider this ever-devel- THE COURSE AND SCOPE OF ground check revealed no misconduct, but oping type of litigation to be no different EMPLOYMENT RELATIONSHIP the driver had a domestic violence convic- than any other traditional case. Defense A second defense available to TNCs tion 12 years earlier. counsel must be aware of the fact-sensi- when a driver engages in misconduct, is the In some jurisdictions, TNCs face tive liability defenses, and the companies argument that the driver’s tortious actions additional requirements for operation, should take proactive steps to limit liability were outside the course and scope of the including insurance coverage and finger- based on the emerging case law. employment relationship. In determining print-based background checks. Thus, in whether an individual’s actions were within order to decrease liability for negligent the course and scope of his employment hiring and supervision claims, TNCs must relationship, California courts have held comply with extensive background check that “respondeat superior liability does requirements. not attach simply because employment More states are now requiring TNCs to brought the employee and victim together conduct background checks on each driver Crislove A. Igeleke is an at a certain time and place. The employee’s applicant and also requiring that they per- Attorney practicing business, activities must be inherent in, typical of or form an additional check every so often. general liability, tort, and fi- created by the work so that it is a foresee- However, some of these same states allow for duciary duty litigation. She able risk of the particular employment.”8 the sealing of certain criminal records stat- has a B.S. in Political Science Typically, whether the tort occurred within utory time limits. Thus, even by employing and International Relations the scope of employment is a question of these additional measures to verify driver from Lincoln University fact. backgrounds, an added layer of uncertainty and earned her J.D. from In cases of intoxicated drivers, fac- still exists. As such, TNCs should conduct University of Nevada Las Vegas, William S. Boyd School of Law.

1 See Secci v. United Independent Taxi Drivers, Inc., 214 Cal. Rptr. 3d 379, 385 (Ct. App. 2017). Kelsey L. Maxwell is an 2 See Housewright v. Pacific Far East Line, Inc., 40 Cal. Rptr. 208, 212 (Ct. App. 1964). Attorney focusing her prac- 3 See S. G. Borello &Sons, Inc. v. Department of Industrial Relations, 769 P.2d 399, 407 (Cal. 1989) tice on the areas of general (internal cross-reference omitted.) 4 Lawson v. Grubhub, Inc., 302 F. Supp. 3d 1071, 1087 (N.D. Cal. 2018). liability, and specialty tort 5 Jones v. Royal Admin. Servs., Inc., 866 F.3d 1100, 1107 (9th Cir. 2017). including habitability and 6 See O’Connor v. Uber Techs., Inc., No. 13-cv-3826, 2013 WL 6354534, at *6 (N.D. Cal.Dec. 5, 2013); see also Cotter v. Lyft, Inc., 60 F. Supp. 3d 1067, 1078 (N.D. Cal. 2015). discrimination claims. 7 See NRS 706A.090. Kelsey is a graduate of The 8 Williams v. Regents of the Univ. of Cal., No. G029601, 2002 WL 31873790 at *2 (Cal. Ct. App. Dec. 26, 2002). 9 See Id. at *3. University of Arizona (B.A.) 10 See Calrow v. Appliance Industries, Inc., 122 Cal. Rptr. 636, 637 (Ct. App. 1975). and Chapman University, Dale E. Fowler School 11 See Doe v. Uber Techs., Inc., 184 F. Supp. 3d 774, 785 (2016). 12 See Id.; see also Xue Lu v. Powell, 621 F.3d 944, 949 (9th Cir. 2010). of Law (J.D.). 13 See Doe, 184 F. Supp. 3d at 789. 16 www.uslaw.org USLAW

Transaction Insurances on International Deals Douglas W. Clarke • Therrien Couture L.L.P. Edward Craft • Wedlake Bell LLP Tyson Freeburg • Woodruff Sawyer Andrew Godfrey • Kelly Santini LLP Andrea Rescigno • Legalitax

When you consider a deal outside of mon tools to reduce M&A deal risks. cency in the market that it is not necessary the U.S., you must familiarize yourself with However, these products are widely to fully negotiate the deal, because the risk differences in legal system. Contractual misunderstood. It is vital that, before you will be covered by the policy: this is simply behaviors and market conditions, includ- pay the premium, you fully understand the not the case, as anyone who has sat on an ing instructing local counsel, familiarizing product and obtain value for it. underwriting call will testify. yourself with a different legal system, dif- Transaction insurances have unlocked This article represents an overview ferent contractual practices and different many an impasse on M&A deals but are also of transactional insurance on M&A deals, enforcement mechanisms. Transaction changing behaviors and risk tolerances. drawing upon current and emerging trends insurances are becoming increasingly com- There is a growing and concerning compla- on both sides of the Atlantic. USLAW www.uslaw.org 17

TRANSACTION INSURANCE, SO YOU popularity is its flexibility, through deliver- tion. For example, if the target has unau- MEAN R&W INSURANCE? ing benefits to each the buyer and seller, dited financials, the underwriters will most Not quite. In the U.S. and Canada, regardless of which party is the named in- likely require a quality of earnings report the product is called representation and sured or pays for the premium. RWI pol- prepared by an auditor and this can take a warranty insurance (RWI), reflecting the icies offer the most protection when the few weeks to prepare. fact that buyer protections are usually pre- terms of the transaction agreement are Experience shows that it takes 5-6 sented in the form of a series of represen- balanced as a result of comprehensive, but weeks to select an insurer, negotiate terms tations. By contrast, in Europe the product reasonable, negotiation and don’t heavily and the cover schedule with its legal team is called warranty and indemnity insurance favor one party over the other. Further, and take on board the insurer’s comments and requires a contractual warranty claim the policy can be tailored to match the risk on the SPA. Accordingly, the reality is that to be brought for proven losses. These profile of the transaction. For example, if transaction insurance represents no delay differences in terminology are reflected the target has significant IP exposure, when to a deal, because it can be run in parallel in differing risk coverage and, when com- a breach would exceed the general indem- with the due diligence, negotiation and dis- bined with a less litigious culture, lead to nity cap, a policy holder can purchase a sep- closure processes. It is vital to ensure that very different cover premiums. You will find arate, higher limit for those provisions. you have effective transaction and project European cover costs to be significantly management in place, otherwise you will lower than those in North America. RISKS WHICH REMAIN experience inevitable delays. WITH THE SELLER The decision to purchase an RWI pol- The insurer perceives risks, their ma- icy is often made once negotiations have teriality and whether or not these should stalled and the transaction is well under- WHEN MIGHT A be borne, very differently from the parties. way. While not ideal, underwriters can and TRANSACTION INSURANCE Underwriters will not simply agree to cover will get a policy in place within a fortnight. the negotiated SPA. Instead, a key part of Additionally, you can even place a policy for BECOME APPROPRIATE? obtaining the policy is a granular analysis a transaction after closing but at that point of each warranty and a schedule setting out the terms of the agreement are final, so the • High deal value whether each is: underwriters’ flexibility on certain terms • High complexity • covered; will be limited. • Seller wants to distribute cash • not covered; or immediately (e.g. a fund) • modified. THE ADVANTAGES FOR A SELLER Generally, in M&A transactions, the • Expectation gaps on buyer This is where things can become a lit- representations and warranties are about protections tle metaphysical. You will have a choice to the buyer’s desire to understand the target • Multiple vendors renegotiate the warranty or proceed on the company that it has seen in the due dili- • Alternative to a retention basis of a non-real scenario, like a hypothet- gence review process, to ensure the portrait ical lease on a rent review. remains true at closing and to attribute risk or escrow It is vital to work with your broker and if this is no longer the case. • Parties need to rely on the to draft the stock purchase agreement in The seller is generally looking to avoid strong covenant of an insurer such a way that it is clear that the seller will giving assurances on issues it does not have bear risks not covered by insurance (insur- direct knowledge or experience of, partic- ers generally exclude cover for unspeci- ularly risks that are already known to the fied environmental and tax risks, certain buyer. deal-specific indemnities). It is also import- Where the parties end up as to the ap- ADVANTAGES OF TRANSACTION ant to remember that insurance is unlikely portionment of risk is often a function of INSURANCE to be effective in relation to criminal liabil- different elements, including the bargain- There is a perception that obtaining ity as a matter of public policy. ing power of the parties, the skill of their transaction insurance on M&A deals in- advisors, the depth and breadth of the due creases cost and time. In fact, experience GETTING THE POLICY IN PLACE diligence review that was conducted and shows that it can actually accelerate deals You cannot speak to your broker too the time period available for the due dili- getting to closing, ending often soul-de- soon. The broker understands the cur- gence review. stroying and negative negotiation where rent market and where risk appetite lies , In this context, the advantages for the lawyers hunker down in the negotiating even with a forward view as to attitudes 4-6 seller of transaction insurance are multiple. process. months ahead, when the deal will close. For instance, the policy may be used to: RWI allows the buyer to rely on a pol- For example, many environmental risks (i) extend the scope of certain represen- icy that offers more protection than what will not be covered by the product and cer- tations or warranties to bridge the gap be- the seller may be willing or able to offer via tain specific tax risks (in particular, for tax tween the needs and expectations of buyer traditional indemnification and may extend planning) are likely to be excluded. This and seller; the survival period of the reps, offer higher allows you to go into the negotiation fully (ii) bridge the gap between the seller limits of indemnification, and provide a armed with an understanding of what you and the buyer regarding the amount of buyer the opportunity to file a claim with can get covered by insurance and the areas the holdback of part of the purchase price an insurer as opposed to suing the manage- where you will require the seller to go on payable at closing and the duration of such ment team they just acquired in the event risk. Your broker can also offer advice on holdback; and of a breach. the diligence that underwriters will expect (iii) resolve issues of joint and several liabil- One of the reasons RWI is rising in to see given the risk profile of your transac- ity, which can become problematic where 18 www.uslaw.org USLAW there are shareholders with different levels In addition, there will be certain types of knowledge of, or investment in, the target of liability that are excluded from the pol- Douglas W. Clarke is a partner company. icy. There are, however, other transactional at Therrien Couture L.L.P. insurance products available in the market Douglas acts on behalf of clients THE ADVANTAGES FOR A BUYER to address some of these issues such as a tax in a broad range of commercial The buyer is risking its capital and wants opinion or contingent liability policy. A tax matters including mergers & ac- to hold some back rather than have to sue opinion policy will cover certain tax treat- quisitions, technology licensing, (potentially many individual shareholders) ments that are standard exclusions in an product distribution and clean for a breach when the asset does not live up RWI policy. Additionally, other transactional technology financing. Perfectly to the promises made. However, often the insurance products will cover known risks bilingual, Douglas is a skilled negotiator with an seller is not prepared to give the comfort the and are commonly used outside the context eclectic legal background. buyer needs. of a transaction. As a result, for the buyer, the advantage Understanding the scope of the remain- Edward Craft is a corporate of transaction insurance is that it can deliver ing risk and communicating this to clients partner at Wedlake Bell LLP in the certainty to complete. In addition, insur- is an important responsibility of the M&A London, England. Edward’s ance (and the involvement of an objective attorney. No attorney will be thanked by his practice focuses on both transac- third party analyzing the deal in a different or her client where the client believes cover tions and corporate governance way to the parties) can help ease the poten- has been obtained, but the policy does not matters. tial conflicting interests that arise in certain pay out on the specific risk in question. types of transactions where one or more of the sellers are: THE CURRENT STATE Tyson Freeburg is a Trans- • insolvent or financially distressed; OF THE PRODUCT actional Insurance Specialist at • employees of the seller; Transaction insurances have long been Woodruff Sawyer. He engages • being hired to manage the purchased used to plug title issues on real estate deals. with the market to find transac- business post closing; or They are now becoming a standard consider- tional risk solutions for clients • rolling over a portion of their ownership ation on complex or expensive M&A deals. who seek protection from the risk interest into the buyer. It is now becoming standard practice to in- complexity of mergers & acquisi- sure deals involving: tions transactions. POTENTIAL PITFALLS • competing bids; Despite the potential advantages, the • private equity exits; Andrew Godfrey is a partner at use of insurance is not without risks and • real estate special purpose entities; and Kelly Santini LLP in Ottawa, there are optimal size parameters within • trading businesses unless the transaction Ontario, Canada. His practice which this product works best. is between industry players. focuses on mergers and acquisi- It is not uncommon for sellers to in- tions, capital markets, banking demnify against issues that are known to the However, some parties still do not wish & finance and corporate reorga- buyer, and such matters to not be insurable. to incur the costs and alter the risk profile in nizations and restructurings. He It is best to involve your broker as soon as the way an insurance product does. has experience advising clients possible. across many sectors, including healthcare, technology The contract of insurance itself can be a A SALUTARY LESSON FOR THE FUTURE and manufacturing, and he has a strong track record pitfall. These are not the type of documents The increased use of transactional insur- working on cross-border transactions. transactional lawyers are expert in analyz- ance does not eliminate risk from a transac- ing. Simply lining up the definitions and the tion. It simply changes that risk. Transaction Andrea Rescigno, admitted to the carve-outs and exclusions in the policy with insurances can unlock a number of impasses bar of Milan (Italy), is a partner the purchase agreement can be challenging, in a deal. However, it is important to learn with Legalitax in the corporate hence the need to work with a good broker, the lessons of the last decade when mono- and commercial department. who will usually deploy a transaction team, line insurance wrappers over collateralized Andrea represents Italian and including legally qualified experts in these debt obligations collapsed. The insurance is foreign clients mainly in the in- products. only as good as the financial strength of the dustrial (chemical, pharmaceu- Many underwriters have pre-negotiated insurer. tical and printing) and media base forms. Prior to the release of the first sectors. He is chairman of several 231 Supervisory draft policy, your broker should be pushing OUR KEY RECOMMENDATIONS ARE: Boards and has been on the board of directors of a va- the underwriter to use the most recently ne- • negotiate a comprehensive M&A deal with riety of subsidiaries of primary multinational groups. gotiated policy form to avoid unnecessary the counterparty; revisions. • go into the negotiation having fully ex- It is important for parties to understand plored the options with your broker; and that these insurances are not a cure all and • if the insurance does not cover this risk, risks remain with buyer and seller as allo- ensure that the seller remains on risk and cated under the contract or by law. not limited to a nominal $1 of liability. For example, there is often a deductible, which means that the seller will have to cover a portion of the loss claimed in addition to having paid the premium (assuming it was not paid by the buyer or split between the parties). USLAW www.uslaw.org 19

Education. 20 Networking. 19 It’s no secret – USLAW can host a great Destinations. JULY 31 – AUGUST 1, 2019 event. Throughout the year, USLAW has a USLAW Transportation Industry full complement of offerings that deliver Connections. Summer Legal Forum important industry-leading educational Fairmont Le Château Frontenac programming and outstanding network- Quebec City, Quebec ing opportunities.

® AUGUST 21, 2019 FEBRUARY 7, 2019 USLAW EduNet Webinar USLAW EduNet Webinar Workers’ Compensation Updates For What’s Reasonable When Employers Maryland & Delaware Are Asked To Provide Accommodations

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SEPTEMBER 26 – 28, 2019 FEBRUARY 26, 2019 MAY 30 – 31, 2019 Fall 2019 USLAW NETWORK USLAW EduNet Webinar USLAW Professional Liability Client Conference Terminating Employment: Best Exchange Hyatt Regency Jersey City Tracks: Commercial Law, Complex Tort Practices To Navigate The and Product Liability, Employment and Termination Minefield Jersey City, New Jersey Labor Law and Professional Liability Mandarin Oriental – Washington, D.C. MARCH 5, 2019 JUNE 4, 2019 USLAW EduNet Webinar USLAW EduNet Webinar OCTOBER 14 – 15, 2019 Reserve Or Not To Reserve Mediation Techniques And The USLAW Retail and Hospitality Tripartite Relationship JUNE 20 – 22, 2019 Law Exchange

USLAW Women’s Connection Includes Employment and MARCH 20, 2019 Labor Law Track USLAW Dinner at ABA Cliff House Maine – Cape Neddick, Maine Hotel Monteleone Transportation MegaConference JULY 15, 2019 New Orleans, Louisiana Restaurant August New Orleans, Louisiana USLAW Dinner at ATA Litigation OCTOBER 24, 2019 Center Trucking Legal Forum USLAW Dinner at TIDA Annual Escondido, Califorina MARCH 28 – 30, 2019 Conference Spring 2019 USLAW NETWORK JULY 23, 2019 Tampa, Florida Client Conference USLAW Webinar Tracks: Construction Law, OCTOBER 30, 2019 Pitfalls of Social Media in the Data Privacy and Security, Insurance USLAW Banking and Financial Workplace Law, Retail and Hospitality Law and Institutions In-House Counsel Forum Transportation and Logistics Radisson Blu Hotel JW Marriott Nashville Minneapolis, Minneapolis Nashville, Tennessee 20 www.uslaw.org USLAW

Discovery challenges in cross-border litigation and investigations Drew Macaulay Consilio

INTRODUCTION protection legislation is the most commonly to enforce the protection of data concern- The need for multinational corpora- encountered issue, where the data that ing legal entities such as corporations. tions to gather and review documents from the company needs to collect, review and Depending on the jurisdiction, this can different jurisdictions for investigation and produce originates in a jurisdiction where include information about the company’s litigation purposes is not a new phenome- the rights of the data subject (most often customers and other third parties and as non, but the associated challenges continue an employee) are protected in relation to such, names, signatures, bank account de- to intensify. Corporations that operate data that identifies them. Again, this is not tails and contact information (for example, across borders must be ready to overcome a new challenge, but one where the risks email addresses or telephone numbers) a variety of legal, logistical and linguistic of non-compliance have dramatically in- may also be deemed private and protected hurdles, and all too often in circumstances creased in Europe with the introduction from disclosure. where time is tight, and budgets stretched of the General Data Protection Regulation In addition, corporations with overseas and its associated fines based on a percent- subsidiaries are expected to provide dis- BETWEEN A ROCK AND age of global turnover. covery even when the act of doing so may A HARD PLACE It is not only personal data privacy conflict with a local blocking statute, such Legal challenges to conducting discov- that causes delays and additional cost in as the French Blocking Statute of 1968 (as ery exercises overseas include personal data cross-border discovery exercises. In some amended in 1980). In the case of France, privacy, banking secrecy, “blocking” statutes jurisdictions, notably Switzerland and the criminal sanctions for contraventions and state secrets legislation. Of these, data Singapore, legislation has been enacted of the Blocking Statute are significant but USLAW www.uslaw.org 21

are rarely enforced, so while the chance of as local IT staff) may be unfamiliar with an issue, similar approaches to managing a fine or imprisonment is low it remains a discovery processes and/or may not speak personal data can be used, but it is worth difficult decision to make for a corporation English as their native language, increasing noting that the redaction stage can be even when a U.S. court expects discovery of doc- the chance of key information being lost in more extensive (and therefore time con- uments originating in France. translation and mistakes being made. suming and costly) than simple personal In each of these contexts, conflicts Staying with the languages theme, the data redactions. arise because the ability of the company to existence of documents in multiple lan- The playbook will usually be distrib- collect and transfer data to another jurisdic- guages in the data to be collected, searched, uted to key personnel across the enterprise tion are limited by law, even though there reviewed and produced will add further as well as “go-to” outside counsel in the are pressing legal reasons to follow that complexity to an already challenging pro- relevant jurisdictions. Follow-up training course of action. When these legal restric- cess. While the “lingua franca” of many sessions can help to ensure that concerns tions are raised as an objection to provid- U.S. corporations is English, it remains are addressed and those who are unfamiliar ing discovery from a particular jurisdiction, normal to see collected data in non-English with the eDiscovery process have a chance U.S. courts are frequently unsympathetic, speaking countries contain many different to learn and ask questions in a less pres- and will often decide that the interests of languages. While processing software has sured situation than a live project. In this the U.S. justice system override any risks evolved to the point where searches can be way, the playbook and associated rollout borne by the company providing docu- run in almost any language, choosing the training sessions ensure that all participants ments. words to search for remains a challenge. have a common understanding of approved Corporations undertaking cross-bor- It is not simply a matter of translating spe- project workflow and their role within the der discovery exercises will find that cific search terms in English into a range of process as well as any interdependencies deadline pressures can be exacerbated by target languages as in many cases a literal that may exist between stakeholders’ roles. delays while they take advice from data translation will not accurately retrieve po- The playbook will also normally con- privacy counsel, the company’s data pro- tentially relevant documents (for example tain contact details for key members of staff tection officer or, in certain situations, “backhander” in English could mean a blow in different departments and jurisdictions negotiate with a works council. If it is sub- with the back of the hand, an uncompli- at the corporation, facilitating project start sequently decided that the data cannot mentary remark or a bribe). up, communication and ongoing manage- leave its country or region of origin to be Picking the right translation for the ment. It may also extend to include con- processed elsewhere then a corporation specific context requires a more sophis- tact details for the corporation’s approved will normally have to contract with a local ticated approach, in which linguistic and service providers for data collection, eDis- service provider for eDiscovery services legal experts collaborate to define the best covery processing and hosting, translation and potentially document review. Under search strategy to retrieve documents of in- services and document review. GDPR, the contracting process for engag- terest. Again, this process adds time and ing a supplier to which data is going to be expense to the overall budget. Once poten- CONCLUSION transferred would need to include creating tially relevant non-English documents have With increasing globalization and the a Data Processing Agreement, a Record of been identified, sourcing lawyers proficient focus of data protection authorities on en- Data Processing and reviewing the potential in each language to review them can be a suring data subjects’ rights in relation to supplier’s “Technical and Organizational final challenge. their data are enforced, the challenges of Measures” to ensure that data that moves to cross-border eDiscovery will continue to the provider is adequately protected both PLANNING IS EVERYTHING intensify over time. Corporations that in- contractually and from unauthorized ac- Corporations that regularly come vest the time in building internal processes cess. Finally, while it is not always necessary, up against these issues will usually have a and procedures to respond to these chal- transfers of documents containing personal defined set of processes for discovery ex- lenges will be able to significantly reduce data outside the EU frequently necessitate ercises. Often termed a “playbook,” this the risk and cost involved in handling these redactions of that personal data. All of the document will guide project stakeholders exercises, as well as increasing the speed above points lead to an increase in overall through the company’s preferred work- with which they can respond. An effective cost and the time required to complete flows for identifying, preserving, collecting, global discovery playbook will guide project the exercise which can be in short supply processing, hosting, reviewing and produc- stakeholders through the options for data during an investigation or litigation. ing documents. Where particular jurisdic- collection, processing, hosting and review, tions present a challenge for data privacy ensuring that best practices adopted by LOGISTICS AND LINGUISTICS reasons, the playbook can include company the corporation are used consistently on a It is not just legal restrictions on movement policies, arrived at through consultation global basis or adapted for a specific juris- of data that stand in the way of a company with privacy counsel, that define how per- diction where necessary. trying to comply with U.S. discovery obli- sonal data will be treated in each jurisdic- gations that involve overseas data. The dis- tion. This may include determinations of covery process requires the cooperation of whether or not consent is to be sought (and Drew Macaulay is a man- a range of stakeholder groups, including it is not always necessary or advisable to do aging director at Consilio in corporate IT, internal and external counsel, so) as well as the processes which the legal London, where he advises the data protection officers, information secu- team and any external service provider firm’s global clients on the rity teams, eDiscovery specialists and others. will follow to minimize the impact of the technical and workflow as- Where an exercise involves data across exercise on the rights of the data subject, pects of large scale regulatory a number of countries and time zones the such as in-country processing, hosting and and internal investigations coordination of each of these groups be- review or agreed measures for filtering and and litigation disclosure ex- comes much more challenging, particularly redaction of personal or sensitive personal ercises, as well as compliance with the relevant since members of the project team (such data. In situations where banking secrecy is privacy legislation and procedural rules. Our expertise Includes:

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firms on the move

Victoria M. Almeida of Adler Pollock & Sheehan P.C. in Rhode Chapter’s Board of Directors. Moses’ term follows that of Alex Walker, Island was elected vice president of the Rhode Island Bar Foundation. a Modrall Sperling shareholder who served on the chapter’s board Victoria also serves on its Executive and Finance Committees and from 2012 through 2018. The work of the organization is extremely is past president of the Rhode Island Bar Association. The Rhode important to Modrall Sperling, which lost a beloved friend and part- Island Bar Foundation is the charitable arm of the Rhode Island ner, Doug Schneebeck, in 2016 after a valiant battle with the disease. Bar Association — a non-profit organization that uses programs and grants to improve the justice system in the State of Rhode Island. Stuart Butzier of Modrall Sperling in New Mexico has been elected vice president of the Rocky Mountain Mineral Law Flaherty Sensabaugh Bonasso PLLC attorney Caleb Knight Foundation. He is a long-time RMMLF Member and former was selected by the American Health Lawyers Association (AHLA) Trustee and Secretary. Stuart currently serves as Modrall Sperling’s to serve a third term on its Young Professionals Council. AHLA vice president, managing director of its Santa Fe office, head of is the nation’s largest educational organization devoted to legal the Natural Resources Department, and chair of the Mining issues in the healthcare field. The Young Professionals Council Practice Group. Stuart was named Natural Resources Lawyer of is the governing body that provides insights and direction to the the Year by the Natural Resources, Energy, and Environmental American Health Lawyers Association’s Board of Directors. The Law Section of the State Bar of New Mexico in 2018. Council also coordinates networking events and oversees other initiatives of interest for young professional members. Chad W. Pekron of Quattlebaum, Grooms & Tull PLLC in Arkansas has been appointed to the Arkansas State Board of Education Franklin & Prokopik’s Imoh Akpan’s nomination for mem- by Governor Asa Hutchinson. Chad’s seven-year term will expire in bership into the prestigious Federation of Defense and Corporate 2026. The Arkansas State Board of Education is a nine-member board Counsel (FDCC) has been unanimously approved by their Board composed of two members of each of the state’s four congressional of Directors. The Federation is a distinguished composition of districts and one member selected at-large. Composed of business and legal community members who are at the forefront of defending community leaders, the Board is the policy making body for public clients in civil lawsuits. elementary and secondary education in Arkansas.

Jones, Skelton & Hochuli’s Stephen Bullington has been John E. Tull III of Quattlebaum, Grooms & Tull PLLC in elected into the American Board of Trial Advocates (ABOTA),a Arkansas served on the faculty of the International Association national association of experienced trial lawyers and judges. of Defense Counsel’s 47th Annual Trial Academy being held ABOTA and its members are dedicated to the preservation and July 27-August 2, 2019, at Stanford Law School. The IADC Trial promotion of the civil jury trial right provided by the Seventh Academy is one of the oldest and most respected programs for Amendment to our United States Constitution. developing defense trial advocacy skills.

Nicolas Martino and Kimberly Page of Jones, Skelton & Ruth E. Robinson of SmithAmundsen LLC in Illinois re- Hochuli in Arizona have been named to the Arizona Association of ceived the 17th Circuit Professionalism and Civility Award pre- Defense Counsel Young Lawyer’s Division (AADC YLD) 2019-2020 sented by the Winnebago County Bar Association. Board of Directors. Nic will serve as Community Outreach Chair and Kimberly will serve as CLE Chair and Board Secretary. The S-E-A, USLAW’s official technical forensic engineering and legal AADC YLD Board includes attorneys from throughout Arizona, visualization services partner and a recognized worldwide leader practicing in every substantive area within the defense bar. in forensic analysis, investigation and product testing has, once again, expanded its Health Sciences Practice with the addition John Gregory of Jones, Skelton & Hochuli in Arizona has of a toxicology capability. Coinciding with this new important been elected to the Arizona Association of Defense Counsel investigative service, the firm has added two renowned investiga- (AADC) Board of Directors. John has been a member of the AADC tors—Michael (Mike) Wernke and Matthew (Matt) Brittain—to since 2014. He served on the Young Lawyers Division Executive its growing organization. Wernke is a toxicologist and pharma- Board from 2014-2018, and as president from 2017-2018. cologist; Brittain is a toxicologist with a specialty background that includes extensive experience in agriculture. Both Wernke and Moses Winston, an associate with Modrall Sperling in New Brittain will be based in the Columbus headquarters campus. For Mexico, has been named to The ALS Association New Mexico more information, visit www.SEAlimited.com

26 www.uslaw.org USLAW

Karen Painter Randall of Connell Foley LLP in New Jersey has been appointed for the third time to the Cybersecurity Legal Task Force by the president of the American Bar Association (ABA). Karen was first appointed to the Cybersecurity Legal Task Force in 2017 and will continue as a member for another one-year term commencing with the adjournment of the 2019 Annual Meeting.

On July 12, 2019, attorneys and staff at Dysart Taylor Cotter McMonigle & Montemore, P.C. participated in a service event for NourishKC, which operates a community kitchen in a restaurant-like atmosphere. The group acted as servers, hosts, bussers, and the cleaning crew during the lunch meal service.

On August 7, 2019, a group of volunteers from Franklin & Prokopik visited the Ronald McDonald House, near its main office in Baltimore city, to participate in its McBlitz Day volunteer opportunity. Volunteers helped clean the kitchens and play area and were treated to a tour of the brand-new house that opened just this past spring. The new Ronald McDonald House is now able to lodge 20 more families than the previous house could accommodate. The Ronald McDonald House relies on volunteers, donations, and fundraising to provide a home away from home for families while their children are undergoing treatment at local hospitals. Volunteers prepare meals on site, clean the facility, host craft and entertainment nights, among other activities. The house also offers shuttles to nearby hospitals and shopping centers. To learn more about the mission of the Ronald McDonald House, please visit the website at https://rmhcmaryland.org/.

of USLAW

Lisa Langevin, a partner at Kelly Santini LLP in Ottawa, Ontario, Canada, and a member of the USLAW NETWORK Board of Directors, participated in the 2019 Renault World Gaelic Games in Waterford, Ireland, from July 29-August 2, 2019. She was more than just a participant; she was named team captain for the Eastern Canadian Ladies Gaelic Football Team. Lisa was one of the oldest competitors at the World Games at the age of 44. The women played nine games over a period of four days and finished with a 5-4 record losing in the playoffs to Australasia. Lisa has been playing Gaelic Football for more than 25 years and has competed on the Canadian Team on two prior occasions. Gaelic Football is the national sport of Ireland and combines a variety of sports including basketball, soccer and volleyball. The intent of the Renault World Gaelic Games is to showcase the extent to which the passion and participation for Gaelic Games has now spread far beyond Ireland. More than 97 teams participated in the Renault GAA World Games, including teams from Europe, United States, South Africa, Argentina, Canada, Britain, Australasia, India, Asia and the Middle East. USLAW www.uslaw.org 27

Attorneys and staff from Lewis Roca Rothgerber Christie’s Denver office, along with summer associates from all offices, came together with the City of Denver to beautify Zuni park in a day of service. The group helped weed and mulch the park’s trees, helping to retain water and improve appearance. Together, the group spread two dump-truck loads of 200 gallons of mulch. City representatives explained, “Denver Parks and Recreation relies heavily on volunteers to help maintain our parks and trails” and “[i]t is because of valued volunteers like [Lewis Roca] that we are able to continue to offer the services of Denver Parks and Recreation to our citizens.” After a few hours of hard work, the team was able to celebrate their efforts with a BBQ picnic.

Simmons Perrine Moyer Bergman PLC in Iowa supports United Way’s Sweeping for Change. The United Way of East Central Iowa and Cedar Rapids Curling teamed up to host Sweeping for Change at the Cedar Rapids Ice Arena. Teams from area businesses spent the day learning about the sport of curling and competing for a traveling trophy. Simmons Perrine Moyer Bergman’s team, the Simmons Sweepers, finished in 4th place. Team members included attorneys Abe Carls and Crystal Pound and summer associates Joe Porter, Madison Schroeder and Rebekah Jalilian-Nosraty. (Photo (L to R): Joe Porter, Abe Carls, Phil Several Poyner Spruill attorneys and staff attended the 3rd annual Claire’s Burian, Rebekah Jalilian-Nosraty and Army Gala, which is the signature fundraiser for Claire’s Army, a local Madison Schroeder) nonprofit helping families fighting childhood cancer. The firm has part- Lashly & Baer, P.C. in St. Louis, nered with Claire’s Army for several years and Karen Chapman (far Missouri, won the 2018 Law Firm right in the picture) serves as vice president and sits on the Board of Challenge for the highest percent Directors. (Pictured, from left to right: Sarah DiFranco, Missy Jaskolka, increase year-over-year during the Susan Washington-Yow, Brandi Hobbs, Nina Long, Karin Norman, and St. Louis Arts and Education Council Karen Chapman.) workplace giving campaign. Each year the A&E council challenges 10 law firms in the St. Louis area to Rivkin Radler in Uniondale, New help raise funds for their mission of York, showed strength in num- providing arts and education grants, bers and support for We Care, programs, and opportunities to the charitable arm of the Nassau more than 1.6 million adults and chil- County Bar Foundation. Aside dren in the St. Louis metropolitan from donating to the golf outing region. Pictured is Lashly & Baer’s itself, numerous Rivkin attorneys President Lisa O. Stump along with attended the event, including attorney Terrance J. Good, who is Evan Krinick, Bill Savino, Norman also an A&E Board Member. Tolle, Stu Gordon, Matt Spero, and Sean Simensky. It’s expected that the outing raised more than $100,000, which will be given in charitable grants to those in need Michelle Hernandez, a shareholder with in Nassau County. (Pictured: Stu Modrall Sperling in New Mexico, served Gordon and Sean Simensky) as General Convention Chair of the 2019 International Association of Defense Counsel (IADC) Annual Meeting, held USLAW NETWORK July 7-12 in Asheville, North Carolina. welcomes Laffey, Michelle is an active member of IADC. Leitner & Goode LLC in She serves as a member of the IADC Milwaukee, Wisconsin, to the NETWORK. Laffey, Leitner & Goode works Diversity and Inclusion Committee, in a cross section of industries, including banking, emerging technolo- and is state and regional chair of its gies, franchising, manufacturing, non-profit, insurance and reinsurance, Membership Committee. and transportation. For more information, visit www.llgmke.com.

Same locations, Simmons Perrine Moyer Bergman in Iowa recently re-launched its website with a refreshing rede- sign and improved online user experience. Website visitors can view the unique history of Simmons brand new looks. Perrine Moyer Bergman PLC, have access to In-depth information about the firm’s 30 practice areas and attorneys experienced in those areas, read newly formatted attorney biographies, and learn about the firm’s approach to community involvement. Visit the firm’s website viawww.spmblaw.com .

Traub Lieberman (www.traublieberman.com) in Hawthorne, New York, has relaunched a new, fully responsive website that boasts a clean design and intuitive navigation that directs web visitors to the information most relevant to their needs. Accessing attorney bios, practice areas and our blog content is easier than ever. 28 www.uslaw.org USLAW

successful RECENT USLAW LAW FIRM VERDICTS

Adler Pollock & Sheehan, P.C. (Providence, RI) value, rather than fair value. The amendments created two classes Adler Pollock & Sheehan (AP&S) was retained by the former of ownership – one consisting of Treadway’s units and the other Wayland High School Athletic Director, Stephen Cass, to rep- consisting of their units. They also allowed for a right of first re- resent him in a lawsuit that he had filed against the Town of fusal to each other in the event their ownership interests were Wayland. Through prior counsel, Mr. Cass had filed a Complaint purchased but did not extend the same right to Treadway. The alleging retaliatory action against him by the Defendant as a two former owners then called a special meeting of the two new result of his actions in pointing out policies, rules, and regula- companies and voted, over Treadway’s objection, to have the new tions violations. Mr. Cass filed a claim under the Massachusetts companies call (i.e., forcibly purchase) Treadway’s ownership in- Whistleblower Protection Act. terest. After an eight-day jury trial, the jury entered a verdict in The case was tried in the Massachusetts Federal District Court Treadway’s favor for the purchase price under the amended op- in Boston before Chief Judge Patti Saris. The case took eight erating agreement and an additional $1,608,000 as damages on a trial days. At the end of the trial, the jury determined that Mr. breach of fiduciary duty claim. In total, Treadway received more Cass had been retaliated against in violation of the Massachusetts than $5,000,000 from the litigation. Treadway was represented by Whistleblower Protection Act. The jury awarded damages to him Gregory Neibarger (lead counsel), D. Rusty Denton, Meaghan based on lost wages and emotional distress. Haller, Briana Clark, and Alex Gude. Assessing the strengths of Mr. Cass’s claims was a team effort. Various attorneys at AP&S, with experience in employment and Jones, Skelton & Hochuli P.L.C. (Phoenix, AZ) labor law, were able to provide helpful background in analyzing Jones, Skelton & Hochuli P.L.C. (JSH) attorneys obtain unani- the relevant circumstance. Ali Khorsand also provided valuable mous verdict for insurer and trucking company in wrongful research, analysis and tactical considerations. Because the firm death case (Boyd v. Allied Van Lines, Inc, et. al | Maricopa County was not the original counsel in the case, the firm did not engage Superior Court). JSH attorneys Jeremy Johnson, John Masterson in the underlying discovery. Therefore, lawyers had to become and Alex LaCroix obtained a unanimous defense verdict in a quickly familiar with tens of thousands of documents and assess wrongful death case with four statutory beneficiaries and com- the significance of the most important of those documents to the plex issues of federal and state law. After a three-day trial, the allegations that were being asserted. jury deliberated for only 40 minutes before finding unanimously in favor of the defense. Bingham Greenebaum Doll, LLP (Indianapolis, IN) The decedent was killed when defendant’s truck backed Bingham Greenebaum Doll LLP obtained a favorable jury ver- into him in October of 2016. The decedent’s surviving children dict for its client, Frederick Treadway, on a breach of fiduciary brought suit, alleging that our defendants’ conduct caused the duty claim. Treadway, the founding owner of Specialty Systems, death of the decedent. Plaintiffs sought damages of $20,000,000 Inc. (“SSI”), a nationally recognized remediation and industrial at trial. cleaning company, offered ownership to two of his long-standing The defense argued that there was no liability under the fed- employees of SSI. To do so, SSI sold its assets to two newly formed eral motor carrier safety regulations or at common law because entities that were equally owned by Treadway and his two former the defendant did not control the driver when the accident oc- employees. Treadway took a large promissory note in return for curred. Jeremy, John and Alex represented the insurer and the the majority of the purchase price of the assets. Once the prom- defendant trucking company while JSH appellate attorney Sean issory note was paid, the two other owners amended the oper- Moore provided supporting motion practice. In addition, the ating agreement to add “put” and “call” provisions to allow the firm’s Litigation Support Team provided valuable trial prep and new companies to purchase a member’s ownership at net book technology support before and during the trial. USLAW www.uslaw.org 29

Modrall Sperling (Albuquerque, NM) agreement, (ii) FCCL and CNRL had previously discussed mar- R.E. Thompson and Sarah Stevenson of Modrall Sperling have re- keting their co-mingled product, and (iii) FCCL and CNRL were ceived a favorable opinion from the New Mexico Supreme Court already co-mingling their respective impugned bitumen blends in a major case regarding religious freedom. on a separate but related pipeline. Suit was filed against the New Mexico Public Education The Honorable Madam Justice Goss agreed with CNRL and Department, alleging the provisions of the Instructional Materials CLPLP, finding that FCCL failed to satisfy any of the require- Act violate the state constitution by providing secular instruc- ments of the three-pronged test for interlocutory injunctions, in- tional materials to students of non-public secular and religious cluding the relatively easy-to-satisfy first prong: is there a serious schools. The plaintiffs filed a motion for summary judgment that question to be tried? Parlee McLaws llp and their client, CNRL, was orally granted by the district court. A group of non-public were rewarded for their tireless efforts by this absolute dismissal schools and students, and The New Mexico Association of Non- of FCCL’s application, but also by the provision of costs in an Public Schools, represented by Modrall Sperling, moved to inter- amount many times the norm. vene, and convinced the judge to reconsider her oral summary judgment ruling. The district court then entered summary judg- Rivkin Radler LLP (Uniondale, NY) ment for the defendant. Plaintiffs appealed; the New Mexico In a major victory for the insurance industry Andrew Carothers, Court of Appeals affirmed the trial court, but the New Mexico M.D., P.C. v. Progressive Insurance Company, et. al.) the New York Supreme Court reversed the Court of Appeals. Certain interve- Court of Appeals, the highest court in New York, has affirmed the nors, represented by the Becket Fund for Religious Liberty, filed 2017 order of the Appellate Division upholding the trial verdict a petition for certiorari with the United States Supreme Court, and judgment in favor of 54 NY automobile insurers and self-in- which granted certiorari, vacated the New Mexico Supreme surers in Andrew Carothers, M.D., P.C. v. Progressive Insurance Court’s judgment, and remanded the case to the New Mexico Co. Rivkin Radler partner Barry I. Levy successfully argued the Supreme Court for further consideration in light of Trinity appeal before the Court of Appeals with the rest of Rivkin Radler’s Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. __, 137 S. Ct. team -partners Evan H. Krinick, Michael A. Sirignano, Cheryl F. 2012. On remand, the New Mexico Supreme Court held that the Korman, and Stuart M. Bodoff. The Court of Appeals’ opinion freedom of religion provisions in the United States Constitution preserves a 2008 jury verdict in favor of the insurers, which ex- permits secular instructional materials to be provided to religious punged approximately $20 million in pending claims against and private schools. these members of the New York automobile insurance industry. This case was the subject of a Spring/Summer 2018 USLAW Magazine article entitled, “Religious Freedom v. the Blaine Amendment: SmithAmundsen LLC (Chicago, IL) Current Challenges to a discriminatory remnant of the Nineteenth Jamie S. Lane and Max Goodman of SmithAmundsen in Chicago Century” authored by Modrall Sperling shareholder R.E. Thompson and obtained a defense verdict for a Fortune 500 company after a Eric Baxter of the Becket Fund for Religious Liberty. weeklong jury trial where the plaintiff asked for $3.3 million for breach of oral contract and unjust enrichment. The jury returned Parlee McLaws llp (Edmonton, Alberta, Canada) a $0 reward. Parlee McLaws llp was doubly successful in advocating for their client, Canadian Natural Resources Limited (“CNRL”), in a Sweeney & Sheehan (Philadelphia, PA) recent decision of the Alberta Court of Queen’s Bench: FCCL J. Michael Kunsch of Sweeney & Sheehan in Philadelphia ob- Partnership v Cold Lake Pipeline Limited Partnership by its tained a defense verdict for a ladder manufacturer in a product General Partner Cold Lake Pipeline, (ABQB, 26 June 2019, liability case following three days of trial in the Middle District of Edmonton: 1901-07835). On the eve of the initial hearing, Parlee Pennsylvania. Plaintiff, an electrician, was injured following a fall McLaws llp was notified of an interim-interim injunction that from a fiberglass stepladder while attaching an exterior light to would detrimentally affect the rights and economic interests of a building. Through their engineering expert, plaintiffs alleged CNRL. Despite this procedural inequity, Parlee McLaws llp suc- that the ladder design was defective in that it allowed excessive cessfully applied for party status and obtained a three-week ad- flexibility that led to instability during use. The defense estab- journment to prepare. lished that the ladder was not defective and did not cause the In this matter, FCCL Partnership (“FCCL”) attempted to incident. prevent CNRL from transporting CNRL’s bitumen on the Cold Lake Extension Pipeline (the “Pipeline”), owned by the Cold Sweeny, Wingate & Barrow, P.A (Columbia, SC) Lake Pipeline Limited Partnership (“CLPLP”). At the time of the Martin S. Driggers, Jr. and Brandon R. Gottschall of Sweeny, application, FCCL was the sole user of the Pipeline and argued – Wingate & Barrow, P.A. in Columbia, South Carolina, went to trial among other things – that “irreparable harm” would befall them in Richland County State Court in Columbia, South Carolina, in if CNRL utilized their contractual right to access the Pipeline. June 2019. The case was a medical malpractice matter involving Conversely, CNRL and CLPLP argued, among other things: (i) a MOHS procedure performed by a dermatologist. The Trial FCCL had prior knowledge of CNRL and CLPLP’s transportation Judge granted their Motion for Directed Verdict. 30 www.uslaw.org USLAW

pro bono spotlight

Poyner Spruill LLP (Charlotte, NC) Poyner Spruill attorney J.M. Durnovich’s commitment to pro bono service speaks for itself. Despite his busy private practice, J.M. currently represents an inmate in a federal constitutional challenge over prison policies restricting certain religions. He serves as appellate counsel for children through North Carolina’s Guardian ad Litem program. He Parlee McLaws llp (Edmonton, Alberta, Canada) is a panel attorney for the North Carolina For Elen Bereket, William Peachman, Iain Walker and Michael Corbett of Appellate Pro Bono Program, which pro- Parlee McLaws LLP, contributing their services to the CCDC (Civil Claims vides appellate representation to qualify- Duty Counsel Project) via Pro Bono Law Alberta, feels like a privilege. ing pro se litigants appearing before the State’s appellate courts. And “The opportunity to give back is something I’m grateful for,” says as- he regularly serves as volunteer attorney for the Western District’s Pro sociate Walker, further stating, “I spend a lot of time working for wealthy, Se Settlement Assistance Program, a court-wide program that provides large companies, and the opportunity to help everyday people out who pro se litigants the benefit of a free attorney at settlement conferences really need it, is very rewarding.” with district or magistrate judges. In recognition of his public service, the The CCDC relies upon the volunteer efforts of local Edmonton law North Carolina Supreme Court has named J.M. to the Pro Bono Honor firms to provide legal assistance for individuals facing issues such as small Society every year since the Society’s inception. claims and landlord tenant disputes. It’s a service directed at low-income citizens who have been taken advantage of, or just need some direction Williams, Porter, Day and Neville PC with a legal issue. In addition to the ability to contribute to the greater (Casper, WY) good, volunteering with the CCDC is an ample opportunity to challenge Stuart R. Day has been appointed as a the lawyers due in large part to the 20-minute consultation limit. commissioner of Equal Justice Wyoming, “I like the opportunity it affords me to think on my feet and come an organization dedicated to provided and up with efficient and easy to follow potential solutions,” says associate supporting civil legal aid in Wyoming. He Corbett. was also re-elected as president of the Elen Bereket was awarded the 2019 PBLA (Pro Bono Law Alberta) Board of Commissioners for 2019 and reap- Outstanding Volunteer Award, in addition to, the volunteer lawyer who pointed to another term on the Wyoming picked up a high number of shifts. Elen has stayed true to her commitment Access to Justice Commission for a term ex- of ensuring that all citizens have the opportunity to access legal services. piring on December 31, 2021. Finally, he was She confidently underscores, “Access to justice is an important pillar of also appointed to the Wyoming Supreme our legal framework - we must give a voice to the voiceless.” Court Chancery Court Committee. The Chancery Court Committee is charged with carrying out the Wyoming Supreme Court’s task of creating a Chancery Court for the State of Wyoming ready to hear cases by 2022. USLAW www.uslaw.org 31

about uslaw network

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KANSAS/WESTERN MISSOURI | PENNSYLVANIA | PITTSBURGH CZECH REPUBLIC KANSAS CITY Pion, Nerone, Girman, Winslow Vyskocil, Kroslak & spol., Advocates and Dysart Taylor Cotter McMonigle & & Smith, P.C. Patent Attorneys Montemore, PC John T. Pion...... (412) 281-2288 Jiri Spousta...... (00 420) 224 819 133 [email protected] Patrick K. McMonigle...... (816) 714-3039 [email protected] [email protected] 2019 RHODE ISLAND | PROVIDENCE DENMARK Adler Pollock & Sheehan P.C. Lund Elmer Sandager KENTUCKY | LOUISVILLE Richard R. Beretta, Jr...... (401) 427-6228 Jacob Roesen...... (+45 33 300 268) Bingham Greenebaum Doll LLP [email protected] [email protected] membership Mark S. Riddle...... (502) 587-3623 [email protected] SOUTH CAROLINA | COLUMBIA ENGLAND Sweeny, Wingate & Barrow, P.A. Wedlake Bell LLP LOUISIANA | NEW ORLEANS roster Mark S. Barrow...... (803) 256-2233 Richard Isham...... +44(0)20 7395 3000 McCranie, Sistrunk, Anzelmo, Hardy [email protected] [email protected] McDaniel & Welch LLC Michael R. Sistrunk...... (504) 846-8338 SOUTH DAKOTA | PIERRE ESTONIA • LATVIA • LITHUANIA [email protected] Riter, Rogers, Wattier & Northrup, LLP LEXTAL Tallinn|Riga|Vilnius Robert C. Riter...... (605) 224-5825 Lina Siksniute- MAINE | PORTLAND [email protected] Vaitiekuniene...... (+370) 5 210 27 33 Richardson, Whitman, Large & Badger [email protected] ALABAMA | BIRMINGHAM Elizabeth G. Stouder...... (207) 774-7474 TENNESSEE | MEMPHIS Carr Allison [email protected] Martin, Tate, Morrow & Marston, P.C. FINLAND Lexia Attorneys Ltd. Charles F. Carr...... (251) 626-9340 Lee L. Piovarcy...... (901) 522-9000 MARYLAND | BALTIMORE [email protected] [email protected] Markus Myhrberg...... +358 10 4244200 Franklin & Prokopik, PC [email protected] ALASKA | ANCHORAGE Albert B. Randall, Jr...... (410) 230-3622 TEXAS | DALLAS FRANCE Richmond & Quinn [email protected] Fee, Smith, Sharp & Vitullo, L.L.P. Delsol Avocats Robert L. Richmond...... (907) 276-5727 Michael P. Sharp...... (972) 980-3255 MINNESOTA | ST. PAUL Emmanuel Kaeppelin...... +33(0)4 72 10 20 30 [email protected] [email protected] Larson • King, LLP [email protected]

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USLAW NETWORK undoubtedly has some of the most knowledgeable attorneys in the world, but did you know that we also have the most valuable corporate partners in the legal profession? Don’t miss out on an opportunity to better your legal game plan by taking advantage of our corporate partners’ expertise. Areas of expertise include forensic engineering, A TEAM OF EXPERTS legal visualization services, court reporting, jury consultation, courtroom technology, forensic accounting, structured settlements, eDiscovery, cyber security and data forensics, and investigation.

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LAWMOBILE We are pleased to offer a completely customizable one-stop educational program that will deliver information on today’s trending topics that are applicable and fo- cused solely on your business. In order to accommodate the needs of multiple staff, we go one step further and provide LawMobile right in your office or a pre-selected local venue of your choice. We focus on specific markets where you do business and utilize a team of attorneys to share relevant jurisdictional knowledge important to your business’ success. Whether it is a one-hour lunch and learn, half-day intensive program or simply an informal meeting discussing a specific legal matter, USLAW will structure the opportunity to your requirements – all at no cost to your company.

COMPENDIUMS OF LAW USLAW regularly produces new and updates existing Compendiums providing a multi-state resource that permits users to easily access state common and statutory law. Compendiums are easily sourced on a state- by-state basis and are developed by the member firms of USLAW. Some of the current compendiums include: Retail, Spoliation of Evidence, Transportation, Construction Law, Workers’ Compensation, Surveillance,

Offer of Judgment, Employee Rights on Initial Medical Treatment, and a National Compendium addressing SUBROGATION RIGHTS FOR WORKERS’ issues that arise prior to the commencement of litigation through trial and on to appeal. Visit the Client COMPENSATION LIENS Resources section of uslaw.org for the complete USLAW compendium library. Compendium of Law

ALWAYS KNOW WHAT LIES AHEAD STATE JUDICIAL PROFILES BY COUNTY Jurisdictional awareness of the court and juries on a county-by-county basis is a key ingredient STATE JUDICIAL to successfully navigating legal challenges throughout the United States. Knowing the local rules, PROFILES the judge, and the local business and legal environment provides a unique competitive advantage. BY COUNTY In order to best serve clients, USLAW NETWORK offers a judicial profile that identifies counties as 2019 Conservative, Moderate or Liberal and thus provides you an important Home Field Advantage.

PREPARED BY THE MEMBER FIRMS OF

USLAW DIGIKNOW USLAW DigiKnow is USLAW’s bi-weekly digital e-newsletter featuring insights and perspectives on today’s trending legal issues. Articles and posts are written by USLAW member attorneys who are subject matter leaders from our nearly 20 substantive USLAW Practice Areas and the USLAW membership in general. Through USLAW DigiKnow, we share legal, legislative and jurisdictional news as well as promote upcoming USLAW events and webinars that might be of interest to you and your colleagues. It is an excellent resource to keep abreast of new case law, important verdicts and other pending legislation. 36 www.uslaw.org USLAW

USLAW MOBILE APPS USLAW We pack light. Take USLAW with you wherever you go with two important USLAW mobile applications. Get USLAW information fast by downloading USLAW 24/7. As well, USLAW Events is our Client Conference mobile app that archives all of the presentation materials, among several other items, from past USLAW Conferences. USLAW apps are available on iPhone/iPad, Android (by typing in keyword USLAW) and most Blackberry devices.

USLAW CONNECTIVITY In today’s digital world there are many ways to connect, share, communicate, engage, inter- act and collaborate. Through any one of our various communication channels, sign on, ask a question, offer insight, share comments, seek advice and collaborate with others connected to USLAW. Please check out USLAW on Twitter @uslawnetwork and our LinkedIn group page.

USLAW MAGAZINE USLAW Magazine is an in-depth publication produced twice annually and designed to address legal and business issues facing commercial and corporate clients. Released in Spring and Fall, recent topics have covered cyber security & data privacy, medical marijuana & employer drug policies,management liability issues in the face of a cyberattack, defending motor carriers performing oversized load & heavy haul operations, employee wellness programs, social media & the law, effects of electronic healthcare records, patent troll taxes, allocating risk by contract and much more. USLAW Magazine+, a digital-only magazine, was added in summer 2019 with digital-only issues scheduled for each summer and winter.

USLAW EDUNET A wealth of knowledge offered on demand, USLAW EduNet is a regular series of interactive webinars produced by USLAW practice groups. The one-hour programs The Class Action Attack upon the are available live on your desktop and are also archived at USLAW.org for viewing at a later date. Topics range from Medicare to Employment & Labor Law to Product Motor Carrier Industry: Liability Law and beyond. Defending against Independent Contractor Classification Claims, and Wage and Hour Cases USLAW www.uslaw.org 37

USLAW MEMBERSHIP DIRECTORY Each year both print and online versions of our membership directory is produced. Here you can quickly and easily identify the attorney best-suited to handle your legal issue. Arranged by state, listings include primary and alternate contacts, practice group contact information as well as firm profiles.

RAPID RESPONSE The USLAW NETWORK Rapid Response App locates USLAW attorneys quickly when timeliness is critical for you and your company. Offered for Transportation, Construction Law and Product Liability, this resource provides clients with attorneys’ cell and home telephone numbers along with assurance that USLAW will be available 24/7 with the right person and the right experience. Available at uslaw.org and the USLAW 24/7 App.

CLIENT LEADERSHIP COUNCIL AND PRACTICE GROUP CLIENT ADVISORS Take advantage of the knowledge of your peers. USLAW NETWORK’s Client Leadership Council (CLC) and Practice Group Client Advisors are a hand-selected, diverse group of prestigious USLAW firm clients who provide expertise and advice to ensure the organization and its law firms meet the expectations of the client community. In addition to the valuable insights they provide, CLC members and Practice Group Client Advisors also serve as USLAW ambassadors, utilizing their stature within their various industries to promote the many benefits of USLAW NETWORK.

PRACTICE GROUPS USLAW prides itself on variety. Its 6,000+ attorneys excel in all areas of legal practice and participate in USLAW’s nearly 20 substantive active practice groups and communities including Banking & Financial Services, Commercial Law, Complex Tort and Product Liability, Construction Law, Data Privacy & Security, E-Discovery, Employment & Labor Law, Energy/Environmental, Healthcare Law, Insurance Law, International Business & Trade, IP and Technology, Professional Liability, Retail and Hospitality Law, Transportation and Logistics, White Collar Defense, Women’s Connection, and Workers’ Compensation. Don’t see a specific practice area listed? No worries as USLAW firms cover the gamut of the legal profession and we are sure to find a firm that has significant experience in the area of need. 2018 USLAW Full Page FINAL_v1.pdf 1 7/18/2018 2:37:27 PM

38 www.uslaw.org USLAW

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HH H HH H HHH H S-E-A USLAW U.S. Legal Support, Inc USLAW PREMIER PREMIER OFFICIAL TECHNICAL FORENSIC PARTNER OFFICIAL COURT REPORTING PARTNER ENGINEERING AND LEGAL PARTNER VISUALIZATION SERVICES PARTNER www.uslegalsupport.com www.SEAlimited.com 16825 Northchase Drive, Suite 900 7001 Buffalo Parkway Houston, TX 77060 Columbus, OH 43229 Phone: (800) 567-8757 Phone: (800) 782-6851 Fax: (713) 653-7172 Fax: (614) 885-8014 Charles F. Schugart Chris Torrens President & CEO Vice President 16825 Northchase Drive, Suite 900 795 Cromwell Park Drive, Suite N Houston, TX 77060 Glen Burnie, MD 21061 Phone: (832) 201-3834 Phone: (800) 635-9507 Email: [email protected] Email: [email protected] Pete Giammanco Ami Dwyer, Esq. Executive VP & COO General Counsel 16825 Northchase Drive, Suite 900 795 Cromwell Park Drive, Suite N Houston, TX 77060 Glen Burnie, MD 12061 Phone: (818) 995-0600 Phone: (800) 635-9507 Email: [email protected] Email: [email protected] Jim Cunningham Richard R. Basom Senior VP, Division President Director, National Accounts/London Midwest Region 7001 Buffalo Parkway 200 West Jackson Boulevard, Suite 600 Columbus, Ohio 43229 Chicago, IL 60606 Phone: (800) 782-6851 Phone: (312) 236-8352

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S-E-A is proud to be the exclusive partner/sponsor of Shana Holton technical forensic engineering and legal visualization Senior VP, Division President services for USLAW NETWORK. West Region A powerful resource in litigation for nearly 50 years, 575 Anton Blvd., Suite 400 S-E-A is a multi-disciplined forensic engineering, Costa Mesa, CA 92626 fire investigation and visualization services company Phone: (714) 955-4887 OU specializing in failure analysis. S-E-A’s full-time staff Email: [email protected] consists of licensed/registered professionals who are experts in their respective fields. S-E-A offers complete Headquartered in Houston, Texas, and founded in

Y investigative services, including: mechanical, biomechanical, electrical, civil and materials engineering, as 1996, U.S. Legal Support is a privately held com- well as fire investigation, industrial hygiene, visualiza- pany with over 85 offices located across the United tion services, and health sciences—along with a fully States. As one of the leading providers of litigation equipped chemical laboratory. These disciplines inter- services, U.S. Legal Support is the only litigation act to provide thorough and independent analysis that support company that provides a full suite of court will support any subsequent litigation. reporting solutions, record retrieval, interpreting & translations, trial services and transcription S-E-A’s expertise in failure analysis doesn’t end with services to major insurance companies, corpora- investigation and research. Should animations, graph- tions and law firms nationwide. ics, or medical illustrations be needed, S-E-A’s Imaging

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Consilio Litigation Insights Marshall Investigative Group OFFICIAL E-DISCOVERY, CYBERSECURITY AND OFFICIAL JURY CONSULTANT AND COURTROOM OFFICIAL INVESTIGATIVE PARTNER DATA FORENSICS PARTNER TECHNOLOGY PARTNER www.mi-pi.com www.consilio.com www.litigationinsights.com 401 Devon Ave. 1828 L Street, NW 9393 W. 110th Street, Suite #400 Park Ridge, IL 60068 Suite 1070 Overland Park, KS 66210 Phone: (855) 350-6474 (MIPI) Washington, DC 20036 Phone: (913) 339-9885 Fax: (847) 993-2039 Phone: (877) 714-6204 Twitter: @LI_Insights Doug Marshall Bryan Duberow Merrie Jo Pitera, Ph.D. President Managing Director (West Region) Chief Executive Officer Email: [email protected] Email: [email protected] Phone: (913) 486-4159 Adam M. Kabarec Email: [email protected] Greg Lutz Vice President Managing Director (East Region) Adam Bloomberg Email: [email protected] Email: [email protected] Vice President – Managing Director of Visual Matt Mills Communications Vice President of Business Development Roger Miller Phone: (214) 658-9845 Email: [email protected] Managing Director (Central Region) Email: [email protected] Email: [email protected] Thom Kramer Jill Leibold, Ph.D. Director of Internet Investigations Michael Pontrelli Director of Jury Research Email: [email protected] Managing Director (West Region) Phone: (310) 809-8651 Email: [email protected] Amie Norton Email: [email protected] Business Development Manager Andrew Stone Christina Marinakis, J.D., Psy.D. Email: [email protected] Managing Director (Central Region) Director – Jury Research Liva Rivera Email: [email protected] Phone: (443) 742-6130 Business Development Consultant Consilio is proud to be the official eDiscovery, Email: [email protected] Email: [email protected] cybersecurity and data forensics partner of USLAW Marshall Investigative Group is a national investi- NETWORK. Since 1994, Litigation Insights has been a nationally recognized leader in the trial consulting field. gative firm providing an array of services that help our clients mediate the validity of questionable Consilio is a global leader in eDiscovery, risk man- cargo, disability, liability and workers’ compensa- agement and compliance, document review, and Litigation Insights is proud to be the exclusive tion claims. Our specialists in investigations and legal consulting services. 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Consilio and its global family of com- litigation because we’ve seen so many tough cases dustry in Internet Presence Investigations. With the panies, DiscoverReady, Advanced Discovery, Altep, and, more importantly, we’ve provided valuable in- increasing popularity of communicating and pub- Millnet Document Services and Legal Placements sights. Remember, not every case needs a mock trial. lishing personal information on the internet, inter- Inc., employ leading professionals in the industry, We also support your litigation efforts with smaller net presence evidence opens doors in determining applying defensible workflows with patented and budget services such as theme development, witness the merit of a claim. Without approved methods industry-proven technology across all phases of preparation, voir dire and jury selection. for collection and authentication this information the eDiscovery and risk management lifecycle. ISO may be inadmissible and useless as evidence. Our 27001:2013 certified, the company operates offices, Our courtroom consultants, or “Hot Seat” opera- team can preserve conversations, photographs, document review facilities, and data centers across tors, have no fewer than 12 years of experience in video recordings, and blogs that include authenti- Europe, Asia, and North America. the application of industry-leading presentation software and equipment, as well as an advanced cating metadata, and MD5 hash values. Our goal is knowledge of courtroom protocol and procedure. to exceed your expectations by providing prompt, We make a point of learning the case facts, becom- thorough and accurate information. At Marshall ing familiar with your exhibits and video deposi- Investigative Group, we value each and every cus- tions, and we work closely with the trial attorneys to tomer and are confident that our extraordinary provide continuity and peace of mind. work, will make a difference in your bottom line.

Litigation Insights has been certified as a Women’s Services include: Business Enterprise by the Women’s Business • Activity/Back- • Intellectual Property Enterprise National Council (WBENC). ground Checks Investigations • AOE / COE • Internet Presence For more information on how can help with jury • Asset Checks Investigations research and/or courtroom technology support, • Bankruptcies • Pre-Employment please contact any of our executive staff listed • Contestable Death • Recorded above. • Criminal & Civil Statements Records • Skip Trace • Decedent Check • Surveillance • Health History 42 www.uslaw.org USLAW 2019 USLAW Corporate Partners

MDD Forensic Accountants Structured Financial Associates, Inc OFFICIAL FORENSIC ACCOUNTANT PARTNER OFFICIAL STRUCTURED SETTLEMENT PARTNER www.mdd.com www.sfainc.com 11600 Sunrise Valley Drive, Suite 450 3060 Peachtree Road, NW Reston, VA 20191 Suite 1150 Phone: (703) 796-2200 Atlanta, GA 30305 Fax: (703) 796-0729 Phone: (770) 393-1028 Fax: (770) 393-4432 David Elmore, CPA, CVA Toll Free: (800) 638-5890 11600 Sunrise Valley Drive, Suite 450 Reston, VA 20191 Richard Regna, CSSC Phone: (703) 796-2200 CEO/President Fax: (703) 796-0729 3060 Peachtree Road, NW, Suite 1150 Email: [email protected] Atlanta, GA 30305 Phone: (800) 638-5890 Kevin Flaherty, CPA, CVA Email: [email protected] 10 High Street, Suite 1000 Boston, MA 02110 John Machir Phone: (617) 426-1551 Chief Marketing Officer Fax: (617) 426-6023 7255 E. Griswold Road Email: [email protected] Scottsdale, AZ 85258 Phone: (800) 638-5890 Matson, Driscoll & Damico is a leading forensic Email: [email protected] accounting firm that specializes in providing economic damage quantification assessments for our Structured Financial Associates, Inc. is honored to clients. Our professionals regularly deliver expert, be USLAW’s exclusive partner for structured settle- consulting and fact witness testimony in courts, ar- ment services. bitrations and mediations around the world. Structured Financial Associates, Inc. (“SFA”),

PARTNERS We have been honored to provide our expertise a founding leader in the structured settlement on cases of every size and scope, and we would be business, takes a multifaceted approach to claims pleased to discuss our involvement on these files resolution. The use of structured settlement annu- while still maintaining our commitment to client ities to provide consistent income to injured parties confidentiality. Briefly, some of these engagements while honoring the business practices of our client have involved: lost profit calculations; business partners is the core of our business model. SFA disputes or valuations; commercial lending; consultants assist in the establishment and funding fraud; product liability and construction damages. of other settlement tools, including Special Needs However, we have also worked across many other Trusts and Medicare Set-Aside Arrangements, and

OU practice areas and, as a result, in virtually every SFA is strategically partnered to provide innovative industry. market-based, tax-efficient income solutions for injured plaintiffs and their legal counsel. Founded in Chicago in 1933, MDD is now a global Y entity with over 40 offices worldwide. Structured Financial Associates, Inc. was founded in 1985 and is one of the largest structured settle- In the United States, MDD’s partners and senior ment companies in the industry. SFA is a member staff are Certified Public Accountants; many are of Integrated Financial Settlements (IFS) and has also Certified Valuation Analysts and Certified more than 60 structured settlement consultants Fraud Examiners. Our international partners and with offices in every major metropolitan area of the professionals possess the appropriate designations country. SFA’s full-service operations and support and are similarly qualified for their respective coun- teams are comprised of veterans of the settlement tries. In addition to these designations, our forensic industry and are dedicated to providing superior accountants speak more than 30 languages. service to its customers throughout the United States. Our knowledge and ability to create com- Regardless of where our work may take us around prehensive and tailor-made solutions makes SFA the world, our exceptional dedication, singularly invaluable to defense clients, injured plaintiffs and qualified experts and demonstrated results will their attorneys. always be the hallmark of our firm. To learn more about MDD and the services we provide, we invite you to visit us at www.mdd.com.

THANK SEA AD_UFO_USLaw Network_07-31-19.pdf 1 8/1/19 10:41 AM

CY CMY Juries have many alternatives to choose K from when they don’t get the facts.

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