Message from the Litigation Committee Chair
Happy New Year!
I would like to welcome you to the
ACC Litigation Committee’s first quarterly newsletter! As our first newsletter
of 2017, I would like to thank
the Litigation Committee’s dedicated leadership team for all of their hard work
and enthusiasm out of the gate. Since the ACC’s 2016 Annual Meeting, the leadership
team and the Committee’s sponsor, Navigant Consulting, have spent a lot of time
identifying and planning to deliver various resources and programs to our
members over the coming year, including for this year’s Annual Meeting in
the last quarter of 2016, the Committee provided great programs on topics such
as Trends in Damage Valuations, Beneficial Ownership Disclosures Requirements, and
How to Structure a Whistleblower Program. Already in 2017, the Committee has
provided a well-timed program on Navigating In-House Opportunities as a
Litigator to assist our members who may be considering new career opportunities
in 2017 and we have some great programs planned for the rest of the year,
including topics such as the Use of Artificial Intelligence and the Regulatory
Framework for Using Drones. And we have so much more to come!
I would also like to highlight the Litigation Committee’s refreshed Committee
page. If you have not yet visited the Committee’s page, you can Click here to find a lot of useful information about the Committee
in the following areas:
· Chair’s Message
· Mission & Charter
· Interest & Affinity Groups
· Call for Authors
· Awards & Past Chairs
· Job Listings
In addition, you can also find on the Committee’s page, a list of eGroup
topics, upcoming Committee events and the Committee’s developed resources for
our members. Also on the page, you find
posted information about the Committee’s sponsor and a list of Committee
Highlights that identifies committee resources, including a link to both the
inhouseACCess.com blog and discussion, and the Litigation Committee’s
Cybersecurity Questionnaire and Guide. We have also included a link that you can use
to sign-up to receive recurring meeting invites for the
Committee’s monthly calls. Last, but certainly not least, you will also find
important information about the Committee’s pro bono imitative with KIND (Kids
In Need of Defense), which serves as the leading organization to protect children
who enter the U.S. immigration system alone and strives to ensure that no such
child appears in immigration court without representation.
I would also be amiss if I failed to mention that
we stand ready and willing to support our members who have an interest in
exploring opportunities for professional growth and want to exercise their leadership
or authoring skills. Please do not hesitate to contact me, or anyone on the
leadership team if you have any questions about or suggestions for our
Litigation Committee or if you would like to get involved with the Litigation
Committee and the many resources that we help provide our members. We’d love to
hear from you.
Not yet a member of the Litigation Committee? Then click the
"JOIN NOW" button on the Committee’s page to be included in the Committee's
invitations and discussions relevant to you.
On behalf of the Litigation Committee’s
leadership team, we thank you for your involvement and interest and stress that
this Committee is for and about you, our members. We are looking forward to a
supporting you and to a successful 2017!
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Member Spotlight: Dawn Wagner
Dawn Wagner is an attorney in the
Litigation Practice Group of Zurich North America's Corporate Law department.
Dawn began working for Zurich in 2002 and before joining corporate law held
various positions within the Excess Casualty Claims department including Claim
Specialist and Team Manager. Prior to joining Zurich, Dawn practiced law for
six years with defense litigation law firms in Chicago, Illinois handling
primarily tort-related matters including automobile liability, medical malpractice
and dental malpractice cases. Dawn received her undergraduate degree from
Western Illinois University (B.A., Communications, 1993) and her law degree
from Northern Illinois University College of Law (J.D., 1996).
What are your general
responsibilities in your current role?
· Dawn manages “bad faith” cases as well as
non-claim litigation including collection matters and employment cases. Dawn
also handles complex subpoena responses, provides advice on pre-litigation
disputes and supports the Claims organization on corporate and underwriting
issues arising in coverage litigation.
What is one litigation issue that
keeps you up at night?
· Discovery abuse – I spend a great deal of time
managing discovery issues on my litigated matters. The new federal rules on
proportionality were much welcomed and look forward to seeing how those rules
further evolve from an in-house perspective.
Tell us about a hobby or personal
· Being from Chicago, I am a huge sports fan. I
try to attend at least one football, hockey and baseball game each year.
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Visit to the U.S Supreme Court
The Litigation Committee is excited to announce that we are
planning an ACC member visit to the U.S. Supreme Court in 2017.
We are currently working out the details and will be in
touch with additional information on how you can participate.
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The State of User Privacy – Twitter and NJ Become the Latest Contributors to the Debate
by Fernando M. Pinguelo, Esq. (CIPP/US) and Daniel P. Sodroski, Esq.
an age where the Internet, cloud computing, and social media are integral
components of nearly every modern technology company, concerns over users’
privacy have been at the forefront of their corporate counsels’ agendas. Apple famously refused to provide government
agencies with “back door” access to its devices and services. More recently,
Facebook has fought back against government intrusion into its users’ digital
lives by challenging search warrants issued pursuant to a criminal
investigation, arguing that the warrants were unreasonably overbroad and
all-encompassing. These and other similarly situated companies must carefully navigate
the narrows between obstruction of justice and user privacy—a step too far in
either direction could lead to liability and dangerous precedent.
murky voyage is often made wading through decades-old legislation because these
laws were crafted with language specific to the technology of the day, leaving courts
to struggle to apply these laws consistently with regard to privacy in the
context of modern technologies. As a result, today’s corporate counsel must be
ever so cautious and knowledgeable when addressing government and law
enforcement requests for electronically stored data, as their companies may be
in positions to challenge requests from the government depending on the type of
data sought and how it is electronically stored. In fact, many companies have a
contractual or other legal obligation to protect such data. Although the concept of data privacy can be complicated
and the outer contours of Internet privacy can be difficult to discern,
corporate counsel risk legal action, either from the government or from its
customers, if their companies fail to devote significant attention to the legal
landscape in relation to their businesses. A recent New Jersey state appellate
court decision brings to light the impact that changes in technology has on
existing laws and the uncertainties of outcome that befall those who find
themselves in the middle of this legal debate.
The Twitter Decision
February 2, 2017, a state intermediate court of appeals, addressed two issues
of first impression within its jurisdiction implicating private communications content held by third-party
service providers: (1) whether video and audio data electronically
stored on Twitter, Inc.’s servers are considered wire/oral or electronic
communications, and (2) whether accessing such electronically stored
information constitutes an “interception” as defined by the state wiretap law,
the Wiretapping and Electronic Surveillance Control Act (the “NJ Wiretap Act”).
In other words, are private Twitter communications more analogous to an active
telephone call which would require an onerous wiretap order to enable
government access? Or, are these Twitter communications more like a static
voicemail which would require an easier warrant to gain access to such
argued that access to Twitter posts or videos did not amount to an “interception”
of data under the NJ Wiretap Act because the posts are “stored” on the
company's servers and typically accessed after the communication is made. Amicus
curiae contended that these communications are more like a telephone call
because they are ongoing. The appellate
court sided with prosecutors and reversed the trial judge’s decision to limit
access to the Twitter communications.
NJ Wiretap Act provides for issuance of “communication data warrants” (“CDWs”),
which “require the disclosure by a provider of electronic communication service
or remote computing service of the contents of an electronic communication
without notice to the subscriber or the customer if the law enforcement agency
obtains a warrant.” Generally, the law considers “wire” and “oral”
communications to be the transfer of the human voice from one point to another
by aid of a wire, cable, or similar connection.
While wire and oral communications are almost always those transmitted
in real time, the NJ Wiretap Act also classifies wire communications to include
those that are stored electronically, such as a voicemail message. The NJ
Wiretap Act defines “electronic communications” as all other types of
communications not involving the use of a human voice being transferred by wire
or similar in real time (e.g., video
without an audio component), or communications that would otherwise be
considered wire and oral communications but are being stored electronically (i.e., not being transferred in real
intercept wire, oral, and electronic communications being transferred in real
time, law enforcement must meet the heavy burden of (1) a showing of necessity
because normal investigative procedures have failed, and (2) probable cause to
obtain a wiretap order. By contrast, law enforcement need only obtain a warrant
upon a showing of probable cause to be permitted access to wire, oral, and
electronic communications that are stored electronically. Additionally, warrants for electronic
communications can be issued for any purpose, which is far less restrictive
than wiretap orders, which may only be issued to intercept communications
pertaining to the commission of certain crimes.
the state prosecutor filed ex parte applications
for two CDWs, which sought access to videos and audio communications posted by
two users on their Twitter accounts that could otherwise not be accessed. The users had configured their Twitter
accounts to restrict public access to the content of their Tweets. The lower
court had granted the state prosecutor’s applications, but restricted the CDWs
to include only the visual component of video messages, specifically leaving
out any audio data. The state moved for
leave to appeal the restriction on its CDWs.
heavily on Title III of the Omnibus Crime Control and Safe Streets Act
(the “Federal Wiretap Act”),
the Electronic Communications Privacy Act (“ECPA”), the Stored Communications Act
(“SCA”), and federal caselaw to assist in applying the complex and convoluted
nature of social media, and in particular Twitter, to the NJ Wiretap Act, the
appellate court ordered that the CDWs be entered without any limitations.
the blurred distinction between wire and electronic communications, since by
definition both require a sound of some kind to be transferred in whole or in
part by a wire, the appellate court ultimately held that the Twitter postings
constituted “electronic communications” under the NJ Wiretap Act because that
act provided for a broad range of communications that included the transfer of
non-aural (e.g., signs, signals,
writing, and data) communications. The court noted that it did not find the presence
of a human voice to be dispositive of whether a wire was involved in
transmittance, which would trigger the requirement of a wiretap order.
appellate court also concluded that, since Twitter postings were considered
electronic communications that were stored on Twitter’s servers, a wiretap
order was not required to provide law enforcement access to the data and
content of said postings. The court
noted that a wiretap order would only be required for obtaining an electronic
communication being made contemporaneously with its transmission. Instead, since the data was already stored on
Twitter’s servers, and not being actively transmitted from one point to
another, a CDW based on probable cause would suffice to compel Twitter to
provide law enforcement with access without having to notify the owners of the
this state appellate court’s decision is not binding on sister jurisdictions,
it provides perspective on how laws among jurisdictions may differ and offers a
preview of what is to come in federal and state arenas. In light of this recent decision, the key
takeaway for electronic communication service companies and social media
platforms is that audio and audio-visual data stored on one’s servers is
susceptible to law enforcement intrusion, and that the conventional notions
associated with wiretapping laws and their restrictions may not apply in
Internet and social media contexts.
Social media companies, and those that do business with them, must be
able to segregate vulnerable data from employee and customer information;
otherwise, even a narrowly-tailored warrant or subpoena could unnecessarily invade
their users’ privacy.
not directly at issue in the New Jersey Twitter decision discussed above, the
NJ Wiretap Act is derived from the Federal Wiretap Act, the ECPA and the
SCA. The Twitter Decision could have
troubling ramifications for communications common carriers or
social media platforms who have an interest in protecting their users’
correspondence, communications, and privacy.
communication service companies” can include, but are not limited to, companies
that provide a medium or platform for sending video and audio messages (e.g., Twitter, Facebook, Snapchat,
counsel should be knowledgeable about the type of audio-visual data that is
stored on its company’s servers, as this type of data may be more vulnerable to
government intrusion under federal and state laws.
contracts with third parties to electronically store audio-visual data should
warn of government accessibility regardless of ownership.
Fernando M. Pinguelo, Esq. (CIPP/US)
Daniel P. Sodroski, Esq.
(Click here to download the article)
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Blog Post: Random Acts of KINDness
Click here to view the blog post by committee member Jeri Weschler as she describes her recent experience working with Kids In Need of Defense.
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Upcoming Legal Quick Hit
Date: Tuesday March 28, 2017 at 4:00 PM EST/ 8:00 PM GMT
Title: "The activists are coming! The activists are coming!" How to prepare
for the possibility that an activist stockholder seeks influence over
Description: Institutional investors holding small but focused positions in public
companies are increasingly running aggressive campaigns to influence
board decision making. After acquiring relatively small positions in
companies, these “activists” often demand substantial concessions from
corporate boards, including representation on the board, changes in
strategy, and new efforts to sell part of all of a company. This
program will describe activist campaigns at a high level, including the
legal maneuvering that comes with them, and discuss how corporate
counsel can prepare for an possible activist campaign and where to turn
if an activist appears.
Speaker: Erik Olson, Partner at Morrison Foerster.
Click here to register!
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Meet William (Bill) Hochul, Legal Quick Hits Co-Chair
Welcome Bill to the Execultive Leadership Team!
J. Hochul Jr. serves as General Counsel and Secretary for Delaware North, a
global leader in hospitality and food service. With over 60,000 employees and
operating on four continents, Delaware North is one of the most admired,
privately-held companies in the world.
Delaware North also owns and operates businesses involved in gaming,
sports, resorts, travel and more.
General Counsel and Secretary, Hochul manages the legal function for the
company and provides advice and counsel to senior management in all legal
matters involving Delaware North or its operating companies. His
responsibilities include oversight of the company’s numerous regulatory and
legal compliance requirements, along with its vast array of licenses throughout
to joining Delaware North in 2016, Hochul served as United States attorney for
the Western District of New York – a position he began in 2010, when the U.S.
Senate unanimously confirmed him following nomination by President Barack
Obama. Hochul managed a staff of more than 100 attorneys, paralegals, and
support personnel while overseeing the prosecution of all federal criminal
cases brought within the 17 counties of Western New York. His office also
represented the United States in all civil matters brought within the district.
Hochul’s leadership, the office successfully implemented numerous strategies,
organizational initiatives, and public outreach programs designed to keep the
community safe, and also successfully prosecuted crimes involving terrorism,
narcotics, the environment, identity theft, and cyber-related offenses. The
office’s civil litigation returned hundreds of millions of dollars to U.S.
taxpayers. Hochul also served as the chief federal law enforcement official for
began his legal career as a law clerk to a Maryland Court of Appeals judge, and
thereafter joined the litigation section at the Washington office of a large
international law firm, where he represented a wide variety of clients in
complex civil litigation matters. Hochul joined the U.S. Department of Justice
in 1987 as an Assistant U.S. attorney for the District of Columbia before
moving to the Western District of New York in 1991. Hochul became chief of the
office’s anti-terrorism unit following September 11, 2001, and chief of the
national security division in 2006. He served as lead prosecutor in several
high-profile international terrorism cases, including the highly successful
prosecution of the internationally known Lackawanna Six, the first known
instance of Americans traveling to train with al-Qaeda.
has received well over three dozen awards and honors for his work, including
co-recipient of the 2003 Attorney General’s Award for Exceptional Service – the
highest award of the U.S. Department of Justice. He served as an adjunct
professor at the State University of New York at Buffalo School of Law, Hilbert
College and Niagara University, and has also lectured widely, both domestically
and abroad, on an extensive variety of topics including anti-money laundering,
counter-terrorism, public corruption, rule of law, and more.
graduated cum laude from the University of Notre Dame in 1981, and earned his
law degree from the State University of New York at Buffalo Law School in
1984. Hochul also received recently his
mini-MBA from Boston University, Questrom School of Business. Hochul is married to Kathy, the current New
York State Lieutenant Governor and a former Member of Congress.
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Many thanks to our wonderful committee sponsor, Navigant Consulting for the valuable resources and support they provide throughout the year!
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