26Th Annual Issues for Corporate House Counsel CLE Seminar
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26th Annual Issues for Corporate House Counsel CLE Seminar Louisville, Kentucky Sponsored by the Kentucky Bar Association Corporate House Counsel Section Kentucky Bar Association 514 West Main Street Frankfort, Kentucky 40601 502.564.3795 www.kybar.org The Kentucky Bar Association Corporate House Counsel Section presents: 26th Annual Issues for Corporate House Counsel CLE Seminar This program has been approved in Kentucky for 7.00 CLE credits including 2.00 Ethics credits. Compiled and Edited by: The Kentucky Bar Association Office of Continuing Legal Education for Kentucky Bar Association Corporate House Counsel Section © 2016 All Rights Reserved Published and Printed by: The Kentucky Bar Association, February 2016. Editor’s Note: The materials included in this 26th Annual Issues for Corporate House Counsel seminar book are intended to provide current and accurate information about the subject matter covered. The program materials were compiled for you by volunteer authors. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of the Kentucky Bar Association disclaim liability therefor. Attorneys using these materials or information otherwise conveyed during the program, in dealing with a specific legal matter, have a duty to research original and current sources of authority. 26th Annual Issues for Corporate House Counsel CLE Seminar Table of Contents Agenda............................................................................................................................. i Speakers ........................................................................................................................ iii Cyber Vigilance in a High Tech World: Tending to Lurking Legal Risks ........................... 1 EEOC Update ............................................................................................................... 17 Intellectual Property for the Occasional IP Practitioner .................................................. 31 The DOL's Busy Year: Raising the Salary Minimum for the FLSA and Cracking down on Independent Contractors .................................................................. 41 The "How To" of Securing Electronic Data: My Adversary Gets to See My Data. What Now? .......................................................................................................... 51 Checklists for Document Preservation/E-Discovery ....................................................... 59 The Top Five Ethical Violations Found in Malpractice Claims ........................................ 63 "....And Here's the Top Ten!" Ethics and Malpractice Avoidance Guide ........................ 97 Summary of Kelley et al. v. TMMK .............................................................................. 105 26th Annual Issues for Corporate House Counsel CLE Seminar March 10, 2016 Louisville, Kentucky 8:00-8:30 a.m. Registration & Continental Breakfast 8:30-9:30 a.m. Cyber Vigilance in a High Tech World: Tending to Lurking Legal Risks (1.00 CLE credit) Kathie M. McDonald-McClure Lisa E. Underwood 9:30-10:00 a.m. EEOC Update (0.50 CLE credits) Leila G. O'Carra 10:00-10:15 a.m. Break 10:15-11:15 a.m. Intellectual Property for the Occasional IP Practitioner (1.00 CLE credit) P. Douglas Barr Dana Howard 11:15-11:45 a.m. The DOL's Busy Year: Raising the Salary Minimum for the FLSA and Cracking down on Independent Contractors (0.50 CLE credits) Sharon L. Gold 11:45 a.m.-1:00 p.m. Luncheon & Annual Section Meeting 1:00-2:00 p.m. E-Discovery (1.00 CLE credit) Christopher M. Piekarski 2:00-3:00 p.m. The Top Five Ethical Violations Found in Malpractice Claims (1.00 Ethics credit) Jane Broadwater Long i 3:00-4:00 p.m. "....And Here's the Top Ten!" Ethics and Malpractice Avoidance Guide (1.00 Ethics credit) Jane Broadwater Long 4:00-4:15 p.m. Break 4:15-5:15 p.m. Wage & Hour Disputes: A Case Study (1.00 CLE credit) Timothy J. Weatherholt ii SPEAKERS Kathie M. McDonald-McClure Wyatt, Tarrant & Combs, LLP 500 West Jefferson Street, Suite 2800 Louisville, KY 40202 502.562.7526 [email protected] Kathie McDonald-McClure is a partner with Wyatt, Tarrant & Combs, LLP, where she is a member of the firm's Health Care Practice Group. She focuses her practice on the regulation of provider arrangements and beneficiary inducements, pharmacy board licensure, Medicare and Medicaid enrollment, Medicare reimbursement, secondary payer rules and related payment reform, clinical trial contracting and regulatory compliance, health care information privacy and security, and the adoption, implementation, and meaningful use of certified electronic health records. She is the editor of the Wyatt HITECH Law Blog, which focuses on legal developments related to health information technology, privacy, and security. Ms. McDonald-McClure received her B.S.B.A., with highest honors, from the University of Louisville in 1982, and her J.D. from the University of Louisville School of Law in 1985. She is included in Woodward/White's The Best Lawyers in America® 2009-2014, and was selected as a "Partner in Healthcare" by Business First, 2008-2014. She is a member of the American Health Lawyers Association, Health Care Compliance Association, Healthcare Financial Management Association, the Kentucky and American Societies of Healthcare Risk Management, Association for Conflict Resolution, International Association of Privacy Professionals, and the American, Kentucky, and Louisville Bar Associations. Lisa E. Underwood Wyatt, Tarrant & Combs, LLP 250 West Main Street, Suite 1600 Lexington, KY 40507 859.288.7665 [email protected] Lisa Underwood is a partner with Wyatt, Tarrant & Combs, LLP in Lexington, where she leads the firm's Data Privacy & Security Team, bringing together the firm's experience in privacy and security in banking, healthcare and other industries in order to provide legal assistance on data security and breaches for clients across a multitude of industries. She also leads the firm's Equine and Gaming Team and is a member of the firm's Corporate and Securities Service Team. Ms. Underwood represents businesses in pari- mutuel and data privacy and security matters, as well as legislative, administrative law and regulatory initiatives. She previously served as Executive Director for the Kentucky Horse Racing Commission, as Deputy Commissioner for the Department of Public Protection and Acting General Counsel, Kentucky Horse Racing Commission, and as senior corporate counsel for Mason & Hanger. Ms. Underwood received her B.A. from Sewanee-The University of the South in 1981, and her J.D. from the University of Kentucky College of Law in 1984. She is a member of the International Association of Privacy Professionals (IAPP) and the Kentucky and Fayette County Bar Associations. iii Leila G. O'Carra Wyatt, Tarrant & Combs, LLP 250 West Main Street, Suite 1600 Lexington, KY 40507 859.233.2012 [email protected] Leila O'Carra is a partner with Wyatt, Tarrant and Combs, LLP, where she is a member of the firm's Labor & Employment Service Team. She practices in the areas of labor and employment, higher education, and commercial litigation. Ms. O'Carra received her B.S. from Vanderbilt University in 1998, and her J.D. from the University of Kentucky College of Law in 2003. Prior to joining the firm, she clerked for Hon. Jennifer B. Coffman, U.S. District Court Judge for the Eastern and Western Districts of Kentucky from 2003-2005. Ms. O'Carra is the Legislative Director for the Bluegrass Society for Human Resource Management, and is a member of the Central Kentucky American Inn of Court, the National Association of College and University Attorneys, and the Federal, American, Kentucky, and Fayette County Bar Associations. P. Douglas Barr Stoll Keenon Ogden, PLLC 300 West Vine Street, Suite 2100 Lexington, Kentucky 40507-1801 859.231.3000 [email protected] Doug Barr is a member of Stoll Keenon Ogden, PLLC in Lexington, and currently serves as the firm's Managing Director. Mr. Barr is a litigator and a key member and leader of the firm's Business Litigation and Intellectual Property Litigation practice groups. His practice is focused on a wide range of complex business litigation including patent infringement litigation and related patent litigation, intellectual property licensing disputes, trademark infringement, trade secret litigation, fiduciary litigation, complex employment litigation, breach of contract litigation, and internet disputes. Mr. Barr received his B.A., with High Distinction, from the University of Kentucky, and his J.D., with Honors, from Ohio State University. He is a member of the Fayette County, Cincinnati, Kentucky, Ohio, American, and Federal Circuit Bar Associations. Mr. Barr is AV® Preeminent™ Peer Review Rated by Martindale-Hubbell®, is listed in The Best Lawyers in America®, recognized by Chambers USA and is honored as a Kentucky Super Lawyer for his many legal accomplishments. iv Dana Howard Stoll Keenon Ogden, PLLC 300 West Vine Street, Suite 2100 Lexington, Kentucky 40507-1801 859.231.3000 [email protected] Dana Howard is a member in Stoll Keenon Ogden, PLLC's Lexington office and has been with the firm since 2007.