BLT: July 2018


Feature Articles

Alternative Dispute Resolution

Strategizing a Case in Litigation Versus Arbitration

In principle, every case should be decided according to the facts and the law, no matter who is making the decision or in which forum. In practice, the forum making the decision can make a huge difference. In particular, the differences between litigation in court and arbitration before a private panel can be dispositive because of the differences in procedures, the nature of the forum, opportunities to seek fees and costs, and the opportunities for review after the proceeding is over. Those differences may also be critical regarding certain preliminary aspects of the dispute, such as requests for injunctive relief. Each stage of the process presents different kinds of strategic decisions.

Business & Corporate

Delaware Court of Chancery Examines the Garner Exception to the Attorney-Client Privilege

Buttonwood Tree Value Partners v. R.L. Polk & Co. and Morris v. Spectra Energy Partners are two recent cases providing new guidance on the limits of the Garner exception. The Supreme Court of Delaware has emphasized that the Garner exception is narrow and difficult to satisfy. Practitioners should understand the key takeaways from these cases as to when Garner does and does not apply.

Business & Corporate

What's Next for Sports Betting in the U.S.?

On May 14 of this year, the Supreme Court issued a decision that has changed the landscape of gambling in the United States. In Murphy v. NCAA, 138 S. Ct. 1461, the Court invalidated the federal law that had limited sports betting to Nevada. Since that decision, several states have passed, or are in the final stages of passing, laws authorizing wagering on sports. While the Court’s decision has unleashed pent-up enthusiasm in states for regulated sports betting, the road forward is likely to be contentious.

Business & Corporate

Corporate Board Diversity: Gaining Traction Through Investor Stewardship

Momentum in achieving corporate board diversity has gained traction as a result of three driving forces. Asset managers pushing for change, institutional investors calling for accountability and transparency, and regulatory mandates are pushing corporate boards to realize that corporate board diversity can affect shareholder value. Although traditionally shunned, corporate board diversity can no longer be ignored.

Business & Corporate

The LabMD Case and the Evolving Concept of “Reasonable Security”

In LabMD, the Eleventh Circuit held that the FTC’s consent order against LabMD was void because the security program requirements were not specific enough to be enforceable. In its cybersecurity consent orders; these requirements are not rule-focused but tend to be risk-based, technology neutral, and reliant on evolving industry standards. The opinion calls into question the enforceability of existing FTC consent orders and the FTC’s ability to craft a concept of “reasonable security” on a case-by-case basis.

Business & Corporate

SCOTUS Issues Landmark Decision on Cell Phone Location Information with Major Implications for Fourth Amendment Privacy

On Friday, June 22, 2018, the Supreme Court issued its much-anticipated opinion in Carpenter v. United States, 585 US. __ (2018), and declared a Fourth Amendment privacy right for cell phone location data. Seeing how “seismic shifts” in technology have altered our conceptions of privacy, the court revised its long-held “reasonable expectation of privacy” test and ruled that police obtaining cell site location information (CLSI) records from a person’s cell phone service provider constitutes a Fourth Amendment “search” requiring a warrant.

Business & Corporate

Emerging Legal Issues in Data Breach Class Actions

Businesses face more than reputational risk when the personally identifiable information (“PII”) of their customers is stolen during a data breach. Many data breaches have spawned multi-plaintiff or class action lawsuits by customers whose PII was accessed by unauthorized third parties as a result of the breach. But, until recently, businesses faced modest litigation risk in these cases because most courts held that litigants lacked standing to sue in federal court, reasoning that plaintiffs had yet to suffer an injury absent allegations that the exposure of their PII resulted in identity theft or unauthorized and unreimbursed charges to their financial accounts. This survey discusses new developments in the law of standing in data breach cases, as well as decisions about the viability of legal claims. Currently, the law is sharply divided, and it is likely to remain so for the foreseeable future.