As the regulatory and business environments in which our clients operate grow increasingly complex, we identify and offer perspectives on significant legal developments affecting businesses, organizations, and individuals. Each post aims to address timely issues and trends by evaluating impactful decisions, sharing observations of key enforcement changes, or distilling best practices drawn from experience. InsightZS also features personal interest pieces about the impact of our legal work in our communities and about associate life at Zuckerman Spaeder.
Information provided on InsightZS should not be considered legal advice and expressed views are those of the authors alone. Readers should seek specific legal guidance before acting in any particular circumstance.
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Briefer Sessions and Smaller Binders: Why Remote Witness Preparation May be Here to Stay
More than a year into the Covid-19 pandemic, lawyers have become pretty comfortable taking and defending virtual depositions, including preparing a witness remotely. Even though remote depositions will become less frequent as the pandemic subsides, remote witness prep may remain commonplace. Here are a few things we’ve learned over the last year that are worth considering even when preparing for in-person depositions.
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Wear Pants and Be Patient: More Lessons from the Virtual Courtroom
With a year of pandemic-fueled work-from-home experience under our collective belts, you can now find numerous helpful guides and horror stories to help you prepare for remote hearings and trials. There are some basics everyone should know by now, like making sure your internet is reliable (ethernet > WIFI); knowing the court’s rules for virtual hearings; and wearing pants. But here are some additional lessons from the virtual trial trenches that will help set you up for success:
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When Will the Judge Decide My Motion? Insight from the Civil Justice Reform Act
It can be tough to wait for a judge to decide your motion. Lawyers and clients generally want a decision quickly, but sometimes that doesn’t happen.
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Recent Supreme Court Decision May Force Lower Courts to Reevaluate Personal Jurisdiction Test
The Supreme Court’s recent decision in Ford Motor Company v. Montana Eighth Judicial District Court, 141 S. Ct. 1017 (2021), is the latest entry in the Court’s rulings on personal jurisdiction, and may force lower courts to reevaluate jurisdictional tests that have required a plaintiff to show that a defendant’s actions in the forum state had a causative link to the plaintiff’s claims.
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Senate Tweaks Hatch-Waxman with Bill To Codify FDA’s “Active Moiety” Regulation
To clarify a long-running, hotly-litigated question regarding when a new drug qualifies for exclusive marketing rights intended to reward innovation, Congress has taken an important step toward amending the Federal Food, Drug, and Cosmetic Act (FDCA).
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Should Every Maryland Lawyer Who Commits A Dishonest Act Be Disbarred?
Maryland is harsh on lawyers who commit dishonest acts. Since Attorney Grievance Commission v. Vanderlinde, 773 A.2d 463 (Md. 2001), the Court of Appeals has stated many times that the presumptive sanction for dishonest acts is disbarment. To oversimplify, the Court reasons that lawyers who commit dishonest acts are dishonest lawyers and therefore cannot be entrusted with client matters.
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Erasing the Distinction Between What’s Good and What’s Profitable: The SEC’s Increased Focus on Climate and ESG
On March 22, 2021, the SEC launched a new page on its website to collect agency actions and resources about climate and environmental, social, and governance (ESG) issues in investing. This is the latest in a series of initiatives by the Commission signaling that climate and ESG disclosures—that is, the information asset managers and public companies provide to investors about their ESG-related risks and opportunities—will take center stage as the Commission adapts to the priorities of the Biden administration. Investors increasingly look to a company’s ESG impact or whether a fund follows ESG criteria to inform their investing decisions. Similarly, many younger consumers rely upon ESG factors to guide their purchasing choices. The lack of a standardized ESG framework makes it difficult for investors and other stakeholders to make “apples to apples” evaluations of a company’s or fund’s ESG practices.
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Making Mental Health Parity a Reality—The Challenge Continues
Now more than ever, we are aware of the close interplay between mental and physical health. Historically, our health care system has too often turned a blind eye to mental health conditions—simply treating and providing coverage for physical ailments and sending patients on their way. Health insurance companies both reflected and exacerbated this problem, providing no or wholly inadequate coverage for mental health services. The 2008 passage of The Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act—commonly known as the Parity Act—was a giant leap forward in outlawing discrimination by insurers against mental health services. Under the Parity Act, if a health plan covers both medical/surgical conditions and behavioral health conditions (i.e., mental illnesses or substance use disorders), it must provide benefits for both types of conditions “at parity” – that is, on an equal basis. This means, for example, if a plan covers routine outpatient services in a doctor’s office to treat medical conditions like strep throat, it must also provide comparable coverage for outpatient services in a therapist’s office for treatment of depression or an opioid addiction.
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The Other Rules of Professional Conduct
In October 2019, the Maryland State Bar Association’s Committee on Ethics published an opinion discussing a Maryland attorney’s duty to report the unauthorized practice of law by a non-Maryland attorney. A footnote to the opinion states:
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A Hostile Work Environment—At Home
Discrimination doesn’t just include refusing to hire someone based on a protected characteristic, such as race or gender. Harassment based on a protected characteristic can also give rise to a discrimination claim, if the harassment is “severe or pervasive enough” to create a hostile work environment.
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A WARNing for Employers: When Conducting Layoffs, Know This Law
The coronavirus pandemic has already had a massive impact on businesses. Many companies have announced layoffs, furloughs, or unpaid leaves of absence.
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Is An Employee With Coronavirus “Disabled”?
The recent coronavirus outbreak raises a host of employment-law issues. For example, the Occupational Safety and Health Act requires employers to take measures to eliminate or reduce dangerous hazards to their employees. The Family and Medical Leave Act mandates leave for “serious health conditions,” raising questions as to whether an infected employee is legally entitled to leave. And Title VII of the Civil Rights Act prohibits discrimination based on national origin, so an employer can’t tell someone not to come to work just because he or she is from China or Italy.
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Be Careful What You Wish For: DoorDash Must Arbitrate Thousands of Wage Claims
Many employers strongly prefer arbitration to litigating with their employees in court. Employers often believe—and the Supreme Court has agreed—that arbitration of employment disputes has many benefits, including potential cost savings, more limited discovery, a greater ability to keep the dispute confidential, and speedier resolutions.
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Court Decides That CNN Producer’s Discrimination Claims Are Not “Fake News”
Can a news organization avoid a discrimination claim by arguing that it was exercising its First Amendment right to choose who writes the news?
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National Labor Relations Board Gives Employers More Flexibility to Keep Ongoing Investigations Confidential
Under the National Labor Relations Act (NLRA), employees have a right of collective action, and employers are prohibited from interfering with that right. But these provisions can conflict with an employer’s desire and ability to regulate conduct in the workplace.
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Can Lawyers Be Required To Give Advance Notice before Departing? Perhaps Not, Says American Bar Association
As readers of this blog know, corporate executives (and regular employees) are often subject to non-competes in their employment agreements, as well as other provisions designed to ensure that if they leave their job, they will not be able to work for a competitor for some period of time. By contrast, law firms are ethically prohibited from imposing such restrictive covenants on their attorneys. The justification for this exceptionalism is the premise that clients have the right to choose their counsel and any restrictions on a lawyer’s right to practice could impede that choice. (Of course, why client choice is more imperative in an attorney/client relationship than other professional relationships of trust has always been a bit vague.)
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Jones Day Moves to Dismiss Claims by Supreme Court Clerks, Arguing that Parental Leave Policy Did Not Discriminate
In our last post, we analyzed the complaint that Jones Day ex-associates Julia Sheketoff and Marc Savignac filed against the firm. Sheketoff and Savignac, a married couple, allege that the firm discriminated against them and retaliated against Mark when he complained. They focus on the firm’s parental leave policy, under which new birth mothers receive 18 weeks of paid leave but new fathers receive 10 weeks.
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Supreme Court Clerks Sue Law Firm Over Parental Leave Policy
On Tuesday, married couple Julia Sheketoff and Mark Savignac filed an attention-grabbing lawsuit against their former law firm, Jones Day, for gender discrimination and retaliation. Jones Day is one of the largest law firms in the United States, and was the subject of a lawsuit filed earlier this year by female lawyers alleging a “fraternity culture.”
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Is It Workplace Harassment to Tell an Employee to Go Back Where She Came From?
Last week, President Trump made headlines when he tweeted that “‘progressive’ Democrat Congresswomen … originally came from countries” that were “totally broken and crime infested,” and that they should “go back” to the “places from which they came.” (Three of the Members he was referencing were born in the U.S., and one is a naturalized U.S. citizen. All are women of color.)
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You’ve Got My Mail: Court Rejects Challenge to Employer’s Computer Access
Even employers who are devoted to higher callings can find themselves in worldly disputes with former employees over access to emails and computer files.