Message from the Chair
Dear Litigation Committee Members,
Our start to 2018 has the Committee and its Members hitting the ground running! We have some excellent programming in the coming months including a Legal Quick Hit during our February business meeting (February 27 at 4 pm ET) presented by Major, Lindsey & Africa on the overview of the legal in-house market, including compensation and industry trends. There will also be a discussion of tricks and tips for making a move from your in-house position and how to maximize your marketability with your current role. This is a can’t miss program for our members! Register here: ACC Litigation Committee February Business Meeting
On March 7, K&L Gates will present a webcast on Managing Internal Investigations. The webcast will provide practical tips on managing an internal investigation -- whether it's global or domestic -- while dealing with whistleblower issues, protecting privileges, addressing employee ethical and privacy issues, and better positioning your company in dealing with the government regulators that come knocking at your door. Register here: Webcast: Managing Internal Investigations
We continue to have great support from our co-sponsors Norton Rose Fulbright and Integreon. Look for Top 5s and Top 10s from recent programming presented by our sponsors! Also, Norton Rose Fulbright is working on programming for a webcast on March 21. Look for an announcement soon and keep your calendars open for March 21 at 1 pm ET!
While it seems far off, planning for AM2018 is in full swing! The Litigation Committee has submitted 8 topics for review by the ACC, which includes a proposed “Part 2” to last year’s session on Exploring Ethical Issues Through Film. That session received rave reviews and was packed with attendees! Last year’s program focused on trial ethics, and this year’s proposal may again touch on trial ethics, but also will include ethical practices in discovery. Our fingers are crossed that many of our submissions will be approved, but stay tuned for a forthcoming announcement about AM2018 programming!
Finally, the Litigation Committee always keeps in mind its membership and the content the membership wants to see. Not only do we seek to heed the advice and requests of our members, but we also like to call on our members to be active participants not only with our Committee but with the ACC in general. If you are interested in being a panelist at this year’s Annual Meeting, are interested in publishing an article on a recent cutting-edge case or new legislation that may have an impact on your industry, or you are looking to get involved in our pro bono collaboration with Kids In Need of Defense, please reach out to anyone on our Litigation Committee Executive Council! We are excited to work with our members!
Coleman Lechner, Chair
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Top 10 Operational Tips For Responding to Regulatory Investigations
Authors: Robert Daniel and Vince Neicho, Integreon
Clearly define roles and responsibilities – to ensure that your team is ready to respond and change directions quickly roles and responsibilities should be defined as early as possible. Regulatory deadlines will be extremely tight.
Establish a war room/dedicated team – Include all service providers including inside and outside counsel, internal business leaders, technology support partners, eDiscovery and LPO providers
Urgently compile and circulate a preservation/legal hold notice - to preserve all potentially relevant documents and sources of documents – including the consideration of the suspension of routine destruction/disposal procedures.
Maintain audit logs – detailing criteria for arriving at the composite data set including decisions taken and restrictions imposed (and the reasoning behind them) along the way. Also record officers/people involved in the investigation, noting their rank, role, and objectives
Put measures in place to protect legal and or regulator privilege – Inform all downstream partners of these decisions and have a specific attorney on point to answer all questions for consistency and repeatability
Create a data map and central data request methodology – the data map should include all likely sources of relevant material including hot-spots and weaknesses, such as individual devices (BYOD) and social media (e.g. What’s App) - to capture information that is only held locally. Ensure everyone understands the data map. Create a central repository of all documents (to be) collected and method for collection for all streams of the investigation.
Collect wide - facts discovered at other industry participants in a street sweep will instantly turn into “prove you are not guilty” scenarios. Therefore, the best way to prove a negative is to demonstrate that you have considered huge swathes of data - use technology and smart review processes to provide focus.
Prepare reference documents to assist with key document review – with respect to knowledge transfer, quality, and consistency, including:
List of relevant employees and their rank/role at the relevant times
glossary of relevant jargon and acronyms
Copy of regulatory request ( if approved by counsel)
an explanatory note detailing the background to the investigations, the objectives, strategy etc. (extent of circulation to be determined by the “inner core” team, but this might be appended to the legal hold notice)
Establish a reporting and communication regime – Set up a method to track deliverables and report for each individual work stream, and consolidate reporting for senior/executive leadership teams. Ensure coordination and effective communication through regular meetings. For example:
Defined reporting to internal management / Board of Directors
Weekly roundup meetings for each work stream
investigation wide, status meeting every 2-4 weeks.
end of quarter deep dive session to review of all work streams including status, and potential roadblocks, etc.
Put in place robust document review processes- including:
Efficient workflows - overlap and work duplication can unnecessarily add to cost and turnaround times, e.g. if a particular custodian’s data is about to be reviewed for a specific stream, consider if a second stream may also need information from the same data, to enable a review team to look out for both issues during a single review
Escalation procedures – to deal with the inevitable queries or requests for clarification during
document review or any other part of the process.
Appointing a single person or team to be responsible for the outward production of documents – to maintain consistency and the integrity of the process.
Vince Neicho Robert Daniel
Legal Services Financial Services Practice Group
Integreon - UK Integreon - US
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Meet Theresa Coetzee!
What are your general responsibilities in your current role?
I am Vice President & Assistant General Counsel – Dispute Resolution at Marriott International. Our team manages all commercial litigation and arbitration for all of our Marriott brands and division, globally. This work involves a significant amount of international arbitration and also includes government investigations. But, it does not include tax or employment litigation. In addition, I oversee certain operational aspects of the Law Department, including our technology team and our records department.
What is your favorite part of your job? Least favorite?
I have two favorites. First, I love the global nature of my work. I don’t travel too much, but when I do I enjoy going to new places and learning new cultures. And, by “new cultures” I also mean legal cultures. Most of the time our international matters are arbitrations governed by arbitration centers, ICC or SIAC for example. But, I have found myself in local courts as well. I currently have a matter pending in Malaysian court and will never forget a soft-spoken judge in a partially open-air courtroom in Jamaica or the Four Courts in Dublin. The library was beautiful and our Irish barrister was so fast talking that I couldn’t understand him. Thankfully, the judges did.
Second, I love working for an amazing, ethical company that puts people first.My colleagues in Dispute Resolution and my colleagues all over the world are top notch! And, while commercial litigation and “hospitality” aren’t congruous, we assemble strong teams when we need to do so, achieving good outcomes.
When I think of least favorites, the most obvious things that come to mind are 1) calling outside counsel about billing issues and 2) having to explain to outside counsel, more than once, that in-house counsel must be integrated seamlessly into their litigation team. No decision or filings without in-house counsel input. No reaching out to Marriott associates or witnesses without in-house counsel being aware.
When you are not at work, what are some of your hobbies or interests?
Family is first and foremost. My husband and children (and our many pets) take up most of my free time. But, within that, my husband runs a non-profit youth rugby club for kids ages 5 – 18, Great Falls Rugby. I provide a lot of support to the club. Each year we host a large charity tournament to support the spinal cord injury programs at MedStar National Hospital in Washington DC, and I’ve been our mascot (an eagle) on quite a few occasions.
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China’s Role in U.S. Antitrust Litigation: When Should a U.S. Court Defer to a Foreign Government’s Interpretation of its Law?
Norton Rose Fulbright LLP
In a high-profile antitrust case with significant international implications, the Supreme Court recently announced that it would review the Second Circuit’s decision in In re: Vitamin C Antitrust Litigation. In September 2016, the Second Circuit had vacated a $147 million antitrust price-fixing judgment against two Chinese corporations on comity grounds, referring to the Chinese government’s interpretation of its laws and regulations. Plaintiffs seek to overturn the Second Circuit ruling vacating the judgment against the Chinese corporations. The defendants were found liable for fixing the price and supply of vitamin C sold to U.S. companies.
The Supreme Court limited its review solely to the question of “[w]hether a court may exercise independent review of an appearing sovereign’s interpretation of its domestic law . . . or whether a court is ‘bound to defer’ to a foreign government’s legal statement, as a matter of international comity.” The Court will likely hear the case during its April 2018 sitting, although no argument date has been set yet.
In 2005, plaintiffs brought a class action against the Chinese corporations, alleging they engaged in a conspiracy to fix vitamin C prices and volumes in violation of the Sherman Act. Defendants moved to dismiss based on several defenses, including the principle of international comity. To support this argument, the Ministry of Commerce of the People’s Republic of China (MOFCOM) filed an amicus brief, declaring that Chinese law required that defendants fix prices and restrict output. The U.S. District Court for the Eastern District of New York denied the motion to dismiss, and a jury found in favor of plaintiffs. The court awarded the plaintiffs $147 million. The Second Circuit vacated the judgment, finding that the lower court’s exercise of jurisdiction constituted an abuse of discretion. In doing so, the court arguably created a circuit split over whether a U.S. court must defer to a foreign government when it directly participates in court proceedings by offering sworn statements explaining the construction and effect of its laws and regulations.
The Supreme Court invited the U.S. Solicitor General to weigh in on whether to hear the appeal. In November 2017, the Solicitor General urged the Court to review the decision. The Solicitor General argued that the Chinese government’s interpretation was not conclusive, and the Second Circuit should have considered other factors, including the fact that the Chinese companies admitted to agreeing on prices and volumes without any intervention from the Chinese government.
In today’s ever-global marketplace, the Supreme Court’s decision will not only have significant implications in the antitrust context but may also shed light on the Supreme Court’s stance on comity generally with implications in all disputes of this nature. The outcome of this case will be instrumental in defining the role foreign governments should and will play in U.S. litigation and in guiding courts on how to deal with foreign governments that attempt to shield their companies from U.S. litigation. Foreign-based companies doing business affecting the United States and U.S. companies engaged in international commerce should keep close track of the outcome.
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Grammar Counts – The Placement of a Comma May Cost You Millions of Dollars
Stephen B. Stern, Partner at Hyatt & Weber, P.A.
When drafting contracts, briefs, and other documents, the significance of placing a comma is often overlooked. The decision to include or omit a comma, however, could be dispositive in a dispute over the meaning of legislation or a contract. In O'Connor v. Oakhurst Dairy, 851 F.3d 69 (1st Cir. 2017), the United States Court of Appeals for the First Circuit found the absence of a comma created an ambiguity when interpreting certain legislation and, as a result of that ambiguity, the court relied on other principles of statutory construction to rule in favor of the plaintiffs.
In Oakhurst Dairy, the First Circuit was asked to interpret a Maine statute that governed the eligibility of employees to be paid overtime after working more than forty hours in a workweek. The provision at the heart of the dispute involved an exemption from the requirement to pay employees one and one-half times their regular hourly rate of pay for overtime hours worked. The exemption specifically provided that the overtime statute did not apply to:
The canning, processing, preservation, freezing, drying, marketing, storing, packing for shipment or distribution of:
Meat and fish products; and
The dispute concerned the meaning of the phrase “packing for shipment or distribution.” The plaintiffs (who were delivery drivers) argued that the phrase “packing for shipment or distribution” constituted a single activity, which would result in the exemption not applying to them (meaning they would be eligible for overtime compensation). The company, on the other hand, argued that the phrase “packing for shipment or distribution” constituted two distinct activities – one activity being “packing for shipment” and the other being “distribution” of dairy products, which are perishable. If the court accepted the company’s interpretation, the exemption would apply and the employees would not be eligible for overtime compensation.
The parties acknowledged that the dispute over the phrase at issue largely stemmed from the absence of a comma after “shipment” and before “or.” To interpret the phrase’s meaning, the court applied many interpretive tools.
The court first examined the rule against surplusage advocated by the company. Under this rule, the court must give independent meaning to each word in a statute (or contract) and not treat any word as unnecessary. To this end, the company argued that, although “shipment” and “distribution” are synonymous, they were not redundant because “shipment” described the exempt activity of packing while “distribution” was listed as an exempt activity in its own right. The drivers also contended that there was no redundancy, arguing that “shipment” and “distribution” each described “packing” and, thus, there was no redundancy. In this regard, the drivers argued that “shipment” referred to the outsourcing of the delivery of goods to a third party while “distribution” referred to a seller’s in-house transporting of goods directly to recipients. The court ultimately concluded that the legislature’s use of two different words (rather than using the same word twice) suggested the terms “shipment” and “distribution” were not meant to be used interchangeably and packing was meant to be exempt if it was done for “shipment” or “distribution.”
The court also considered the writing convention of using a conjunction to mark off the last item in a list. To this end, the company argued that there was a comma before “packing” and, thus, before “distribution.” While Oakhurst acknowledged that the exemption’s meaning would be easier to discern if a comma was included before “or distribution,” the company noted that the Maine Legislative Drafting Manual specifically instructed not to use a comma “between the penultimate and the last item of a series.” The drivers countered, however, that the Drafting Manual also cautioned that a missing comma could create ambiguity when an item in a series is modified (which was the case here). Thus, the court concluded that the Drafting Manual did not provide the clear guidance Oakhurst sought. Nevertheless, the court found the convention of using a conjunction to be the company’s most persuasive point.
The court considered another writing convention – one concerning a parallel use. The drivers noted that each of the items in the list clearly constituted an exempt activity (e.g., canning, processing, preserving), but packing was not. Rather, the term “packing” was a gerund while “distribution” and “shipment” were not. According to the drivers, when applying the convention of parallel use, the terms “distribution” and “shipment” had to play the same grammatical role – and one that was distinct from the role of the gerund. In furtherance of this convention, the terms “distribution” and “shipment” had to be objects of the preposition “for” that described the exempt activity of “packing” while the gerunds each reflected stand-alone exempt activities. The court noted that the company’s interpretation of the phrase violated these writing conventions.
Ultimately, the First Circuit concluded that the parties’ various textual arguments were unsatisfactory and, even after examining the statute’s legislative history, it was not clear how the statute should be interpreted. As a result, the court defaulted to the principle that wage and hour laws should be interpreted liberally to further the beneficial purposes the laws were enacted to protect. As such, the court ruled that the phrase “packing for shipment or distribution” constituted a single activity and the exemption did not apply to preclude the employees from being eligible for overtime compensation.
The primary take away from Oakhurst Dairy is that the placement of a comma, or lack thereof, can make the difference between winning and losing in litigation. Oakhurst Dairy is not an isolated case in this regard, however, as it is not unusual for courts to apply writing conventions involving the placement of commas to guide their interpretation of contracts and legislation. See, e.g., Potomac Constructors, LLC v. EFCO Corp., 530 F. Supp. 2d 731, 736 (D. Md. 2008) (applying rule of construction that dictates “a qualifying clause ordinarily is confined to the immediately preceding words or phrase – particularly in the absence of a comma before the qualifying clause” and finding that all words in a contract provision placed after the comma after the word “delay” “create[d] a separate and distinct clause”). [In Potomac Constructors, the contract provision at issue read as follows: “Seller will use all reasonable means to deliver within the time specified, but assumes no liability for loss or damage arising from delay, or no [sic] fulfillment of contract by reasons of fire, strikes, delays in transportation, regulations of the United States Government, or any cause which is unavoidable or beyond its control.”]
While there is a limit to the amount of resources that can be directed at each contract a company enters into, that interest also must be weighed against giving sufficient attention to how each contract is drafted, whether that contract is drafted by in-house counsel or with the assistance of outside counsel. Indeed, if a contract ends up being the subject of litigation, the placement of a comma or the absence of a comma, as well as the words chosen, may determine which party prevails and pays or collects millions of dollars, or obtains or defeats the injunctive relief requested.
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Pro Bono Update: Kids In Need of Defense
· KIND NEWARK - GENERAL INTRODUCTORY TRAINING: Children in Removal Proceedings: Overview of Immigration Court, Case Process, and Forms of Legal Relief, Tuesday, February 27, 2018, from 12:00 to 1:30 pm. EST. WEBINAR ONLY. This is a key general training for every pro bono attorney representing a KIND client or who WANTS to represent a KIND client! We will be providing current guidance on representing a KIND client in the 2018 political and legal climate, including legal representation at the Newark Immigration court, Newark Asylum Office, and NJ family courts. We will provide a brief primer on SIJS and Asylum law, as well as tips and best practices for working with children in the legal context. Please register here for this training. After registering, you will receive a confirmation email containing information about joining the meeting. This call will be recorded and available in your KIND online guidance materials.
SAVE THE DATE – KIND QUICK TOPICS CALL: Preparing for Custody/SIJS Hearings in NJ Family Court. On Thursday, March 29, 2018 from 12 noon to 1 pm, KIND Newark will offer a phone-in training, specifically for KIND Pro Bono Attorneys. The one-hour training will cover best practices in preparing for SIJS-related Family Court hearings in New Jersey. Stay tuned for registration details!
· CLINIC Webinar Series Discount Deal: Feb 15th- May 16th, every Thursday at 2 pm. CLINIC will be holding three webinar series with four webinars in each series. An entire series can be purchased for $150 or attend a single webinar for $50 each. Please click on each link to see more information about the webinars within the series.
Series 1: All About Cancellation of Removal - http://bit.ly/2FCFley
Series 2: All About Motions to Reopen - http://bit.ly/2DXlG8G
Series 3: Forms and Family-Based Immigration - http://bit.ly/2s1Z9Gr
(IAN) Immigration Detention in the US: An Overview (Free): Wednesday, February 7, 2-3: 30 pm
The U.S. detains around 400,000 immigrants per year, and immigration detention is increasing. On any given day, there are at least 30,000 people being held in immigration detention. Who are these detainees? Which immigrants are at risk for detention? Where are detention centers located? What is immigration detention like, and how might immigrants get out of detention? Join us for a discussion of the who, what, when, where and how of immigration detention. The speakers are Jeremy Jong, LaSalle Lead Attorney, Southeast Immigrant Freedom Initiative/Southern Poverty Law Center; Rachel Nagger, Remote Bond Project Attorney, Catholic Legal Immigration Network, Inc. (CLINIC), and Jennie Guilfoyle, Education and Training Attorney, Immigration Justice Campaign of the American Immigration Council and the American Immigration Lawyers Association (AILA). Register here
(CLINIC) Applying for First-Time DOJ Recognition and Accreditation Under the New Rule (Free): Wednesday, February 28, 2-3:30 pm.
The Department of Justice, Executive Office for Immigration Review (EOIR) issued new regulations for recognition and accreditation (R&A) that take effect today. The new regulations made substantial changes to the requirements for R&A for the first time in decades. In addition, EOIR issued new application forms for R&A (EOIR-31 and EOIR-31A). In this webinar, we will review the new eligibility requirements for R&A, review the application forms EOIR-31 and EOIR-31A, and discuss the kinds of evidence and other information required to demonstrate eligibility. This webinar is geared for organizations applying for R&A for the first time under the new rule. It is the first webinar in our two-part series. Register here
(CLINIC) Renewing DOJ Recognition and Accreditation Under the New Rule (Free): Wednesday, March 7, 2pm-3:30 pm
This second webinar in our two-part series is geared for organizations that are already recognized and have accredited staff. We will discuss how to renew agency recognition and staff accreditation, including how to complete the application forms EOIR-31 and EOIR-31A and what evidence to include. Renewal of agency recognition is a new requirement that took effect on January 18, 2017. EOIR sent letters to all currently recognized agencies to inform them of the recognition renewal cycles, which vary. Learn when you are due to renew your agency recognition and how to maintain staff accreditation under the new rule. We will also discuss how to extend your recognition to additional office sites. Register here
(ILRC) Pathways to Adjustment of Status (Free): Wednesday, March 14, 2pm-3:30 pm
Family-based immigration remains a primary path to permanent residence and is even more critical in the changing legal environment. This webinar will explore different adjustment strategies for family-based immigration, including traditional 245(a) adjustment and 245(i) eligibility and grandfathering. It will also explore more recent developments for establishing adjustment eligibility for those with a parole entry and for TPS holders. In addition to reviewing the various pathways to adjustment eligibility, it will highlight red flags as well as provide practical strategies for advocates. Register here.
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