Category Archives: Legal

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Highway Traffic Deaths Preventable with Better State Laws

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A report on highway safety urges state legislatures to examine safety laws and take proactive steps to enact effective rulings. The Advocates for Highway & Auto Safety report “2015 Roadmap of State Highway Safety Laws: Lethal Loopholes,” found that more than 5.6 million crashes in 2013 caused about 32,700 fatalities and 2.3 million injuries. Motor vehicle crashes cost society $871 billion, based on 2010 data.

Federal action and safety requirements can address part of the problem, but state laws have direct impact on promoting safer driver and occupant behavior, according to the report, released in January. An example of the difference state laws can make is with seat belt use, which has been shown to save lives. In 2013, states with primary enforcement seat belt laws for front seat passengers had a 91% belt use rate, while states with secondary enforcement laws had an 80% belt use rate, according to NHTSA data. A study conducted by the Insurance Institute for Highway Safety (IIHS) found that, when states strengthen their laws from secondary to primary enforcement, driver death rates decline by about 7%.

“In 2015, Advocates urges state leaders to close lethal loopholes in their highway safety laws,” Jacqueline S. Gillan, Advocates president, said in the report. “The emotional, economic and societal cost of inaction to improve safety is too high especially considering we know what steps can be taken. Complacency and lack of action have resulted in a dangerous and deadly patchwork of laws across the nation. Lethal loopholes in traffic safety laws are literally killing us—we can and must do better.”

Key facts, according to Advocates:

  • 32,719 people were killed in motor vehicle crashes in 2013—a decrease of 3% from 2012. Automobile crashes remain a leading cause of death for Americans between the ages of five and 34.
  • About 2.3 million people were injured in motor vehicle crashes in 2013.
  • In 2013, almost half (49%) of passenger vehicle occupants killed were unrestrained.
  • Crashes involving young drivers (aged 15 – 20) resulted in 4,333 total fatalities in 2013.
  • 4,668 motorcyclists died in 2013. Though this is a decrease from 2012, this death toll accounts for 14% of all fatalities.
  • 1,149 children age 14 and younger were killed in motor vehicle crashes in 2013.
  • 300 children aged four through seven were killed in motor vehicle crashes in 2013.
  • More than 3.5 million people have been killed in motor vehicle crashes in the U.S. since 1899.
  • The more than 5.6 million police-reported motor vehicle crashes in 2013 had a societal impact in excess of $870 billion. Thirty-two percent of this figure ($277 billion) is economic costs including property and productivity losses, medical and emergency bills and other related costs. Dividing this cost among the total population amounts to a “crash tax” of $897 for every person, every year.

To meet basic safety recommendations, Advocates said states need to adopt 327 new laws:

  • 17 states need an optimal primary enforcement seat belt law for front seat passengers.
  • 33 states need an optimal primary enforcement seat belt law for rear seat passengers.
  • 31 states need an optimal all-rider motorcycle helmet law.
  • 19 states need an optimal booster seat law.
  • 174 graduated driver licensing laws need to be adopted to ensure the safety of novice drivers; no state meets all the criteria recommended in the report.
  • 42 critical impaired driving laws are needed in 39 states and D.C.
  • 11 states need an optimal all-driver text messaging restriction.

Annual Judicial ‘Hellholes’ Report is Out

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Each year the American Tort Reform Association (“ATRA”) publishes its “Judicial Hellholes Report” and examines problems in state court systems and challenges for corporate defendants in the fair and unbiased administration of justice.

The ATRA’s 2014 report was published this morning; a copy is here, as well as an executive summary here.

Insofar as the report identifies and defines a judicial hellhole as a jurisdiction where judges in civil cases systematically apply laws and procedures in an unfair and unbalanced manner, the Judicial Hellholes Report is an important read for corporate counsel facing class action exposures. In sum, if one has to litigate class actions and make decisions with respect to venue strategy, the Report is a “must read.”

The 2014 Hellholes

The ATRA included seven jurisdictions on its hellholes list – including New York (especially in its treatment of asbestosis litigation in New York City), California, West Virginia, Florida (especially rulings of the Florida Supreme Court), Illinois (especially Madison County, Illinois), Missouri (especially rulings of the Missouri Supreme Court), and Louisiana – where it ranked the venues as the “most unfair” in their handling of civil litigation. Commenting on California in particular, the report asserts that it is characterized by “a generally permissive judiciary that invites wholly absurd lawsuits that clog dockets, even as the state’s perpetually precarious finances have led to sharp cuts in court budgets.”

The 2014 “Watch List”

The ATRA included six jurisdictions on its “watch list,” including New Jersey (especially Atlantic County), Mississippi (in the Delta region), Montana, Nevada, Virginia (principally in the Newport News area), and Pennsylvania (especially in Philadelphia). Just a notch below the seven hellholes, the “watch list” jurisdictions also present significant challenges for corporate defendants.

Implications for Employers

The Judicial Hellholes Report dovetails with the experience of employers in high-stakes workplace class actions, as California, Florida, Illinois, Nevada, New Jersey, New York, and Pennsylvania are among the leading states where plaintiffs’ lawyers file employment discrimination and wage & hour class actions in state courts. These jurisdictions are linked by class certification standards that are more plaintiff-friendly and generous damages recoveries under state laws.

This column was previously posted on the Seyfarth Shaw website.

Amicus Supports Government’s Position in Mach Mining vs. EEOC

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On Nov. 3, six advocacy groups representing the interests of workers and plaintiffs’ class action lawyers filed an amicus brief with the U.S. Supreme Court in Mach Mining v. EEOC, No. 13-1019. A copy is here.

Authored by the Civil Rights Clinic of the Dickinson School of Law and The Impact Fund, the amicus brief represents the collective views of multiple public interest organizations, including the National Employment Lawyers Association, The Impact Fund, the American Association of Retired Person, the Asian Americans Advancing Justice-Asian Law Caucus, Disability Rights California and Public Counsel.

The amicus brief was filed in support of the U.S. Equal Employment Opportunity Commission, which filed its Reply Brief with the SCOTUS on Oct. 27, 2014. In supporting the government’s position, the amicus asserted that the brief represents the “perspective of the victims of workplace discrimination whom Title VII is intended to protect.”

Given the importance of this case and the issue presented, the new amicus brief is well worth a read by employers.

The Context and the Stakes

Mach Mining v. EEOC is a big case for employers and for government enforcement litigation. In a game-changing decision in December 2013, the U.S. Court of Appeals for the Seventh Circuit ruled that an alleged failure to conciliate is not an affirmative defense to the merits of an employment discrimination suit brought by the EEOC.

That decision had far-reaching, real world significance to the employment community, for it means the EEOC is virtually immune from review in terms of the settlement positions it takes prior to suing employers: “pay millions or we will sue and announce it in a media release.”

We have blogged on this case at various points before, as the litigation winded through the lower courts and culminated in the precedent-setting decision of the Seventh Circuit reported at 738 F.3d 171 (7th Cir. 2013). Readers can find the previous posts here and here and here.

In essence, the Seventh Circuit determined that the EEOC’s pre-lawsuit conduct in the context of conciliation activities cannot be judicially reviewed. Subsequently, in what many SCOTUS watchers found ironic, even though the EEOC prevailed in the Seventh Circuit, the Government also backed Mach Mining’s request for SCOTUS review to resolve the disagreement among the courts of appeals regarding the EEOC’s conciliation obligations. Given the stakes, the SCOTUS accepted Mach Mining’s petition for certiorari in short order to resolve this issue.

Amicus Briefs for the Defense

Employer groups have lined up behind Mach Mining to support reversal of the Seventh Circuit’s decision. Seyfarth Shaw LLP submitted an amicus brief to the U.S. Supreme Court on behalf of the American Insurance Association in Mach Mining. For blog readers interested in our amicus brief, a copy is here.

Amicus Brief Filed In Support of the EEOC

The amicus submission to the Supreme Court asserts that interpreting Title VII to allow judicial review of conciliation efforts by the EEOC would harm alleged victims of discrimination by violating the mandate of the statute that conciliation remain confidential. Judicial review, the amicus brief asserts, would chill full and frank settlement discussions; expose sensitive information about pre-lawsuit negotiations to the public, and hurt the cases of allegedly injured workers because federal judges might be potentially influenced by irrelevant settlement communications. The amicus brief also argues that if the SCOTUS interprets the statute to allow judicial review of pre-lawsuit conciliation efforts by the EEOC, dismissal is an overly harsh remedy where those efforts are determined to be inadequate (and instead the parties should be ordered to engage in further settlement negotiations).

The point of the amicus brief about compromising the impartiality of federal judges—by exposing the court to settlement discussions in conciliation—is somewhat surprising. Federal judges conduct mediations and settlement conferences as a matter of course, and are “exposed” to settlement discussions routinely.

Next Up on the Docket

Mach Mining’s answering brief is due on Nov. 26, 2014, and then the SCOTUS will set the case for oral argument for January 2015. We will keep our readers updated as developments occur in this litigation.

This post was previously published on the Seyfarth Shaw website here.

Examples of Legal Cases Driving Global Information Governance

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The price of not having good information governance is steep. Despite storage costs being cheap ($0.20/GB), e-discovery costs ($3,500/GB) and lawsuits are not. The following legal cases demonstrate the price of not managing your data while in litigation and offer best practices for when litigation is pending.

Zubulake v. UBS Warburg
Laura Zubulake sued her former employer, UBS, over gender discrimination, requesting key information that was archived in emails. When the e-discovery took place, backup tapes and some emails had been deleted prompting the court to conclude that UBS acted willfully. The jury was instructed to assume that the deleted emails were detrimental to the case. Ultimately, costs were reimbursed to Zubulake in addition to her receiving $9.1million in compensatory and $20.2 million in punitive damages. This case established the framework of electronically stored information (ESI) retention while also setting the legal precedence for e-discovery.

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It underscores the importance of complying with electronic data preservation and production while also suspending document destruction and putting legal holds in place when a party is subject to litigation.

Lessons learned:

  • The scope of a party’s duty to preserve digital evidence during the course of litigation
  • Duty of the lawyer to monitor clients’ compliance with electronic data preservation and production
  • The imposition of sanctions for the spoliation of digital evidence
  • Data sampling, so that knowledge about costs and effectiveness of the recovering process are known in advance

Apple v. Samsung Electronics
In April 2011, Apple sued Samsung for $2.5 billion over patent infringement. Throughout the case, Samsung did not disable its bi-weekly auto-deletion of emails, despite asking employees to manually save their emails due to the litigation. Although Samsung sent initial litigation-hold notices to 27 employees notifying them of a “reasonable likelihood of future patent litigation between Samsung and Apple,” it wasn’t for another eight months that they sent litigation-hold notices to an additional 2,700 employees.

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Samsung was faulted for failing to send notices to all relevant employees and not providing instructions regarding how to save their emails.

As it turns out, Apple was doing the same thing by sending automatic notices to employees asking them to reduce the size of their email accounts. As a result of these missteps, both parties agreed not to instruct the jury to assume that the deleted emails were detrimental to the case.

Lessons learned:

  • If litigation is anticipated, issue litigation holds to all potentially relevant employees
  • When litigation is reasonably anticipated, disable any auto-delete functionality
  • The duty to preserve documents arises when there is a reasonable likelihood of litigation prior to litigation being formally filed
  • Businesses should audit employees to assure they are following the preservation instructions

915 Broadway Associates v. Paul Hastings
915 Broadway brought its former counsel, Paul Hastings, to court alleging that he had committed legal malpractice. Due to the litigation, 915 Broadway issued a legal notice to its employees instructing them to save files and not delete their emails; however, compliance was not monitored and automatic deletion was not stopped. Throughout the two years of litigation, 915 Broadway made no effort to preserve relevant documents from its employees, while failing to suspend its document retention policy which automatically deleted emails after 14 days. Additionally, 915 Broadway went so far as to replace its email servers, preventing any recovery of deleted emails, after Hastings raised concerns about spoliation to the court. Because crucial files were deleted, the million complaint was dismissed and Paul Hastings’ motion for spoliation sanction was granted.

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Lessons learned:

  • Courts have the liberty to dismiss a case if plaintiff does not comply with e-discovery obligations
  • e-discovery compliance needs to be treated with greater importance and urgency
  • It’s imperative to invest in a solid e-discovery infrastructure

The Importance of Information Governance
Information governance has long been viewed as essential for global companies that handle large amounts of data, and continues to become increasingly mission critical each day as demonstrated by the above cases. Take note of these best practices should you ever find yourself in a similar situation:

  • Govern information so that it can be retrieved in a timely manner and you’re not reviewing old documents
  • Don’t just instruct a legal hold, make sure key documents are not being deleted
  • Suspend automatic deletion and document destruction when litigation is pending
  • Comply with electronic data preservation and production

With more than 14,000 laws and regulations related to information management—jurisdiction specific requirements, regulatory compliance, litigation and e-discovery, planned and unplanned audits—it can be difficult to enforce across an organization’s IT infrastructure, although critical during a litigation period. Governance programs are long-term solutions to challenges of frequent litigation and investigations.