WCM Partner to Speak at Privacy Shield Certifications Webinar.

WCM Partner Bob Cosgrove, a CIPP-US and CIPM, will be one of two speakers at an August 31, 2017 webinar entitled Privacy Shield Certifications: Things You Need to Know. Mr. Cosgrove will focus his portion of the presentation on:
1. Privacy Shield: Requirements and advantages of participating in the event of litigation.
2. Serving Two Masters: The litigation process, discovery, and data transfer from the European Union.
a. Why discovery involving European Data is a challenge and what Privacy Shield does and does not do to remedy the problem.
3. There is Nothing New Under the Sun: The implications of Privacy Shield on member state data blocking legislation.
a. Blocking legislation in member countries is still effective.
b. How the United States courts have handled blocking legislation and data transfer restrictions.
4. Privacy Shield Enforcement: The arbitration process and liability for failure to comply with Privacy Shield requirements.
If you are interested in the webinar, more information can be found here, or e-mail Bob Cosgrove.

Sad Times for Lloyd’s of London.

All good things must come to an end, and, so at last, it seems that lunches with Lloyd’s will now become more American with salads and iced teas rather than two courses and bottles of wine. The reason? Because Lloyd’s has now banned drinking during working hours. Hard times for we coverage lawyers who rely upon the afternoon underwriting of risks to ensure gainful employment! To say nothing of the poor pubs and restaurants!

Thank goodness for a trip I was able to make to Lloyd’s a few weeks back, where there was no visible sign of prohibition at work and drinks still flowed freely during the working day.

Arbitration: The New Legal System?

Anyone who litigates knows that arbitration clauses have become increasingly popular. Indeed, it is no longer uncommon to be forced to defend both a personal injury litigation in state court and a contractual litigation in an arbitral forum. A current New York Times series has begun to explore this issue and it sheds some interesting light on what the impetus for the clauses might be and the complications that result therefrom. It’s something for insurers to keep in mind since the potential for increased costs (and more damaging awards) seems high. To our mind, whatever flaws our jury system has, it’s better than an arbitration. To paraphrase Churchill, it’s the worst possible system, except for all the rest.

For more information about this post please e-mail Bob Cosgrove .

Contracts 101 Lesson of the Day – “Sign the Contract”

In Bair v. Manor Care et al., 2015 WL 178258, Ms. Bair, Executrix of her mother’s estate, commenced a wrongful death and survival action against Manor Care, a nursing home, alleging that neglect and abuse of her mother at the facility lead to her death.

Manor Care sought to have the case referred to arbitration pursuant to the terms of an arbitration agreement executed by Ms. Bair. The Superior Court found that no such agreement to arbitrate existed, as there was nothing to demonstrate mutual assent between the parties.

The arbitration agreement form, supplied by Manor Care, contained language that expressly required the signatures of both parties. Ms. Bair signed on the line indicated for the “Patient’s Legal Representative,” but both the signature lines for the “Center” and the date were conspicuously blank. Moreover, the arbitration brochure, which the arbitration agreement specified was part of the agreement and thereto attached, was not actually attached.

Despite arguments that, “lack of signature by the facility representative does not render the agreement unenforceable,” the Court maintained that the signature of one party is insufficient to bind both parties, when a signature for each of the parties is expressly required. Further, the Court found that not only was the signature missing but so too were other essential elements of the contract.

Lesson of the day: If you have an agreement that you intend to bind another party, make sure you sign it yourself.  Thanks to Tiffany Davis for her contribution to this post.

Need to Show “Justifiable Reliance” in UTPCPL Case Defeats Class Action

Before a class action lawsuit can be pursued in Pennsylvania, plaintiffs must obtain an order from the court certifying the suit as a class action lawsuit.  In assessing whether to certify, the court must determine whether a class action lawsuit is a fair and efficient method for dealing with the controversy. A recent decision from the Superior Court of Pennsylvania demonstrates that this determination can hinge on the difference between common questions of fact and law and those questions specific to each individual plaintiff.

Connie Kern was rushed to the Lehigh Valley Hospital ER after suffering injuries at an amusement part. Pursuant to the hospital’s policy, Kern signed an authorization for treatment upon arriving at the hospital. However, according to Kern, based on the payment guarantee paragraph of the authorization for treatment document, Kern was not informed of the price he would pay for services versus the price charged to patients with private or government insurance. Kern alleged that the hospital concealed that uninsured patients, like himself, would be billed according to a “Chargemaster” list, which cannot be obtained by patients.

After being released from the hospital, Kern received a $14,626.53 bill from Lehigh Valley Hospital. Kern neglected to pay his bill. Instead, Kern filed an original complaint against the hospital alleging, inter alia, violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL).  Kern then moved for class action certification for other similarly situated patients. After hearing extensive arguments from Kern and the Lehigh Valley Hospital, the trial court denied the motion for class certification. The court held that Kern failed to establish that his claims presented questions of law or fact common to the class. Instead, the court determined that the prevailing issue in the case would be each class member’s individual justifiable reliance on the hospital’s representations.

On appeal, the Superior Court affirmed the trial court  – Kern failed to demonstrate that “he and all prospective class members justifiably relied on [the hospitals]’s alleged violations of the UTPCPL and, as a result of those alleged violations, suffered an ascertainable loss.” As such, Kern’s individual reliance was the major issue in the case, and denial of class certification was proper.

Moving forward, plaintiffs and potential members of class actions suits need to carefully consider all of the elements they need to successfully prove in order to assert their cause of action. If the elements of their claim require proof individualized to each potential plaintiff, a class action suit will probably be out of reach.  Thanks to Erica Woebse for her contribution to this post.  Please email Brian Gibbons with any questions.

USPS Not Reliable? Mailbox Rule Eroded by 3rd Circuit (PA)

It used to be that the United States Postal Service was so reliable that if a litigant attested to sending a salient piece of evidence by mail, it was presumed to have been received by the other party, known as the “mailbox rule”.  However, recently the Third Circuit recognized the difficulty of this position for a defendant—requiring him or her to prove a negative.

 

In Lupyan v. Corinthian Colleges, the Third Circuit reversed a decision by the U.S. District Court for the Western District of Pennsylvania granting summary judgment for the plaintiff’s employer in a FMLA case.  Lupyan had sued Corinthian for interference with her FMLA rights on the basis that it never sent her a letter confirming her leave for depression fell under FMLA.  Corithian, in its motion for summary judgment, included four affidavits from mailroom and human resources staff noting that the requisite letter had been sent.  The Western District thereby granted the motion because the college was afforded the benefit of the presumption of the receipt of properly mailed letters under the “mailbox rule,” and, thus, it was Lupyan’s responsibility to prove she did not receive the letter.

 

The Third Circuit overturned this decision noting that the presumption under the mailbox rule is a very weak presumption, especially today where letters can be easily certified or tracked, or proof of receipt obtained.  In these circumstances, the mailbox rule presumption was insufficient to establish receipt of the letter as a matter of law.  The court also noted the extreme difficulty faced by individual parties who are required under the rule to “prove a negative”—by establishing that they did not receive the disputed mail. Thus, it appears the Third Circuit has struck another blow the viability of this longstanding common law rule, thereby implying that it is largely insufficient as an evidentiary strategy.

 

This case serves as a useful reminder that all important letters and filing should always be attached to a tracking number to ensure proof of service.

Thanks to Remy Cahn for her contribution.

For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com.

 

Hurray for the USA!

We have previously commented on the lack of personal space in London offices. Now there is a new reason to question the efficacy of the open floor model – apparently open floor office “commotion impairs workers’ ability to recall information, and even to do basic arithmetic.” So, yet again, there is scientific proof that the bigger American way is better.

For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com.

Has Football Been Saved?

Unfortunately, Labor Day is upon us here in the States and summer will (unofficially but practically) come to an end in just a few days. But every cloud has a silver lining and for many Americans, the start of the college and professional football seasons is that silver lining.

We, here, at WCM have previously commented on some of the challenges faced by football. Among those challenges was the federal class action lawsuit filed by former professional football players against the NFL for failure to warn about the risks of concussions. A key ruling was expected this week from USDC Judge Brody of the EDPA. But, instead of a ruling, we have received word of a $765,000,000 agreement in principle. The central aspects of the settlement are that: (a) the NFL is not admitting any wrongdoing; and (b) the settlement cost, for a league that generates $10,000,000,000 per year in revenue, is a mere rounding error.

The question that remains (and that is already being asked) is — what effect will this have on youth or amateur athletics? Our thought is that the absence of a NFL admission of wrongdoing will mean that business will continue as usual in the youth or amateur levels — especially in those parts of the country where football is king. This means that the focus of plaintiffs’ attacks will like be on youth and amateur leagues on a going forward basis.

For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com.

Is the Lack of Personal Space a Hindrance to the London Market?

If you walk onto the floor of a typical American insurance company office, you will see a sea of cubicles (at least for those American insurers that still have offices and do not mandate telecommuting). The cubicles are usually personalized with such things as college football memorabilia, family photographs and, in the case of one claims representative we know, a large buzzard. Such a floor plan stands in marked contrast to a visit to the London marketplace where there are no cubicles, but rather row after row of office tables where colleagues sit side-by-side and face-to-face. Few personal mementos are visible. According to new research, the American approach might be better for personal health and productivity as the absence of office privacy “can lead to emotional exhaustion and burnout.” Is this a case of the American way being better, or simply a reflection of a stiffer constitution across the Pond? You make the call.

For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com.