Above the Law

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    Technology

    Cybersecurity Litigation Monthly Newsletter

    Significant Case Developments

    P.F. Chang’s Seeks Dismissal of Data Breach Class Actions, Arguing the Existence of an Express Contract and Lack of Damages Preclude Claims
    Lewert v. P.F. Chang’s China Bistro, Inc., No. 1:14-cv-04787 (N.D. Ill.).

    As we described in July and September, P.F. Chang’s was hit with three putative class actions following its announcement of a point-of-sale data breach. On August 29, P.F. Chang’s moved for dismissal of the first two cases, now consolidated in the Northern District of Illinois. In their complaints, plaintiffs John Lewert and Lucas Kosner alleged that by failing to safeguard customer information, P.F. Chang’s breached an implied contract and violated consumer protection laws. The plaintiffs did not bring a breach of express contract claim. P.F. Chang’s argues that the plaintiffs acknowledge the existence of an express contract by alleging that “a portion of the services [they] purchased” at P.F. Chang’s was “compliance with industry-standard measures” for data security and that they were “deprived of the full monetary value of [their] transaction.”

    0 Comments / / Oct 23, 2014 at 5:34 PM
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    Finance

    Why do VCs require legal opinions in venture deals?

    Most large venture deals require that the Company’s outside legal counsel issue a customary legal opinion, addressed to the investors in the financing, in order to give the investors comfort that the company’s legal affairs are in order. For companies that have been represented since formation by large regional or national counsel with venture capital experience, this requirement generally is not overly burdensome. However, where counsel has not represented the company since formation or is unfamiliar with VC deals, the legal opinion can become an expensive part of the process and a potential delay in the timing of the financing. Below is a short primer on why VCs require legal opinions and the process and cost typically required for a law firm to issue such an opinion.

    / Oct 23, 2014 at 4:58 PM
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    Advertising, Law Schools, Law Students, Student Loans

    A Tale Of Two Borrowers: An Infographic

    A law school debt infographic.

    / Oct 23, 2014 at 3:15 PM
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    Advertising, Events, Shameless Plugs, This Is an Ad

    Above The Law Is Coming To Chicago

    Please join us in Chicago on November 20!

    / Oct 23, 2014 at 2:44 PM
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    Advertising, Shameless Plugs, This Is an Ad

    Thanks A Million To Our Advertisers

    Above the Law extends thanks to its advertisers.

    / Oct 22, 2014 at 4:49 PM
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    Events

    Prove How Smart You Are By Joining Us For Trivia In D.C.

    Come have fun in D.C.!

    / Oct 22, 2014 at 3:31 PM
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    eDiscovery

    Are Attorney-Expert Communications Discoverable in Pennsylvania? (Almost never) — Some Clarity from the Appellate Courts

    In Pennsylvania, testifying experts usually are not deposed before trial; typically, their written reports are provided in advance of trial and delineate the substance and scope of their testimony. Attorneys often wish to communicate with their client’s expert and comment on drafts of the reports. Until April 2014, the law was not clear whether these communications were discoverable. This uncertainty made it problematic and potentially perilous for a party’s attorney to communicate with the party’s testifying expert, particularly in advance of the disclosure of the expert’s report. In Barrick v. Holy Spirit Hosp. of the Sisters of Christian Charity, No. 2014 WL 1688447 (Pa. Apr. 29, 2014), the Justices of the Supreme Court of Pennsylvania took up the issue of the discovery of attorney-expert communications and split 3-3. This left intact the Superior Court’s bright-line rule preventing discovery of attorney-expert communications—a rule now to be applied by Pennsylvania trial courts.

    / Oct 22, 2014 at 1:09 PM
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    Federal Government, Technology

    Chip-and-PIN is Coming…To the US Government

    Last Friday, in the wake of numerous data breaches, President Obama signed a new Executive Order that will change how federal agencies use payment cards and allow access to certain government portals. Those changes include the adoption of chip-and-PIN (also known as EMV) payment terminals and cards, and the implementation of multi-factor authentication on digital applications where consumers can access personal information.

    / Oct 22, 2014 at 11:43 AM
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    Finance

    FINRA Again Cautions Against Confidentiality Provisions Silencing Whistleblowers

    As reported this week by Law360 (subscription required), the Financial Industry Regulatory Authority (FINRA) recently issued a reminder (Regulatory Notice 14-40) warning firms against the use of confidentiality provisions in settlement agreements that prohibit or otherwise restrict customers or anyone else (such as current employees) from communicating with the Securities Exchange Commission (SEC), FINRA, or any federal or state regulatory authority regarding a possible securities law violation.

    / Oct 21, 2014 at 4:35 PM
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    eDiscovery, Technology

    Refuse to Provide Electronically Stored Information in Response to a Subpoena? You Could Face Sanctions

    The California Court of Appeal recently provided rare guidance regarding a third party’s obligations to produce electronically stored information (ESI) in response to a subpoena. In Vasquez v. California School of Culinary Arts, Inc. (Sallie Mae) (August 27, 2014, B250600) Cal.App.4th (2014 WL 4793703), the court defined subpoenaed parties’ obligations to extract existing data from computer systems and upheld an award of attorneys’ fees against the recalcitrant third party. The court concluded that it is unreasonable for a third party to withhold ESI that exists in its computer systems on the basis that outputting the ESI entails creating a “new” spreadsheet.

    / Oct 21, 2014 at 3:35 PM
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    Events, Law Schools

    Philly Law Students: Come Hang Out November 5th

    Tell your friends and come on down….

    2 Comments / / Oct 21, 2014 at 3:29 PM
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    Bankruptcy, Federal Government

    Stockton Judge: Pension Obligations Are Not Impervious to Impairment In Chapter 9 Bankruptcy. What Comes Next?

    Ed note: This post originally appeared on Bankruptcy Law Insights. The perception that public employee pension obligations cannot be impaired in bankruptcy suffered a damaging blow several months ago in the City of Detroit bankruptcy case, and has now been fatally wounded by the recent ruling of Judge Christopher Klein in the Chapter 9 case […]

    / Oct 21, 2014 at 11:35 AM
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    Events, SCOTUS, Supreme Court

    Join ATL For A Supreme Court Event In D.C.

    If you’d like to hear two veteran Supreme Court advocates discuss the current SCOTUS Term, we’ve got a great event for you.

    / Oct 20, 2014 at 4:19 PM
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    Finance, SCOTUS

    U.S. Supreme Court grants certiorari (again) in FHA disparate impact case

    Could the third time be the charm? Today, the U.S. Supreme Court granted the petition for certiorari filed in May 2014 by the Texas Department of Housing and Community Affairs (Texas DHCA) in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.

    The case gives the Supreme Court its third opportunity since 2012 to rule on the issue of whether disparate impact claims are cognizable under the Fair Housing Act. The prior two cases, Twp. Of Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc. and Magner v. Gallagher, were both settled after the completion of briefing but before the Court could hear oral argument and answer the question presented. This time around the Court granted the certiorari petition without first soliciting the views of the Solicitor General.

    / Oct 20, 2014 at 12:07 PM
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    Federal Government

    On Censoring Political Ads

    Ed note: This post originally appeared on CommLawBlog. With SuperPAC money flowing and political ads running on Internet streams, caution in dealing with political spots is in order. There may be just a few weeks remaining in this election season, but broadcasters should be paying attention – now and in future elections – to an […]

    / Oct 20, 2014 at 11:56 AM
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    Events

    ATL Editors Coming To Your Town

    So what all are we up to this time?

    37 Comments / / Oct 16, 2014 at 3:24 PM
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    eDiscovery

    Tread Lightly: eDiscovery Greed May Leave You With None At All

    On July 14, 2014, the Court in United States v. University of Nebraska at Kearny (No. 4:11CV3209) took a significant step in support of Federal Rules 1 and 26. Magistrate Judge Cheryl R. Zwart denied plaintiff’s motion to compel defendants to use plaintiffs’ proposed search terms to cull electronically stored information (ESI) for review and production. The Court’s order effectively discharged defendants’ obligation to produce any ESI. And the Court issued this order notwithstanding both that 1) the parties had agreed to a stipulation summarizing protocol for the production of ESI shortly after the outset of the case, and 2) plaintiff previously produced ESI as part of its production to defendants’ discovery requests. In short, plaintiffs’ unwillingness to fairly compromise as to the breadth of search terms aimed at reasonably limiting the scope of ESI production came back to bite.

    / Oct 16, 2014 at 11:53 AM

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