October 28, 2014

P&M Attorney Josh Rockwell Puts “Service Above Self” as President of Polaris Rotary

This month, we would like to shed special light on the community service of P&M attorney, Josh Rockwell.  Josh is the current President of the Lewis Center/ Polaris Rotary Club, a leadership and community service group whose motto is “Service Above Self.”  Josh has been a member of the club for several years and has recently taken on responsibilities as President.  In this role, he will lead the club’s annual holiday fundraiser, Best of Polaris, a raffle of gift baskets filled with gift cards and other goodies from Polaris-area businesses.  All proceeds from the raffle benefit People in Need in Delaware County, an organization that provides food, clothing, medical and dental assistance, rent, utilities and other critical aid.  We are proud of Josh and his commitment to giving back!

The Lewis Center/Polaris Rotary Club meets for breakfast almost every Friday at 7:45am in the Ohio Building of the NorthPointe Hotel and Conference Center, 100 Green Meadows Drive South, Lewis Center, OH, to exchange ideas and plan future service projects.  You can find more information here: http://lewiscenterrotary.org/blog/.

October 22, 2014

KidSMILES to host OSU Tailgate in P&M Building Parking Lot

The KidSMILES Pediatric Dental Clinic will be hosting an OSU tailgate this weekend in the parking lot of the P&M building, at 8000 Ravine’s Edge Court.  Come support this worthy cause!!

KidSMILES is a volunteer-led, non-profit dental clinic dedicated to providing quality dental care and education to children at an affordable cost to their families. The KidSMILES Pediatric Dental Clinic is located at 770 Bethel Road in Columbus and serves children ages eighteen and younger at a cost of only $10 per visit.

Comprehensive dental care is provided including:

  • Dental examinations
  • Radiographs
  • Cleanings
  • Fluoride treatments
  • Sealants
  • Cavity removal and restoration
  • Extractions
  • Space maintenance
  • Harmful habit correction
  • Management of impacted teeth

Staffed by volunteer dentists, hygienists and dental professionals, KidSMILES aims to serve children from working families who earn too much to qualify for Medicaid but do not have private dental insurance.

October 22, 2014

Ebola Concerns for Employers–Darned if You Do, Darned if You Don’t

Forbes reports that four people are currently being treated for Ebola in America, two nurses who contracted it while treating a patient in Dallas, and two who were infected while in Africa and subsequently came to America (Forbes). Whether or not Ebola ends up spreading in America or follows the much more likely path and is fully contained, businesses need to at least consider the effect that it can have on their companies.  If Ebola were to spread, businesses would, according to USA Today, be greatly affected because many insurance plans do not cover Ebola.  (USA Today).  According to the Occupational Safety and Health Act, all employers have a legal obligation to provide a safe workplace for their employees (OSHA Liability). Therefore, businesses would be forced to purchase much costlier insurance plans or worry about possible liability from their employees contracting Ebola and potentially spreading the disease.

Additionally, the spread of Ebola could possible lead to whistleblower issues. Some employees may refuse to work at a place that they feel unsafe due to the presence of a disease in their workplace. Would these employees have a legitimate whistleblower claim if they were fired due to their refusal to work? It is likely that any employee who makes an official complaint would be legally protected under the Occupational Safety and Health Act and to prevent liability, employers would have to show that either: 1) there is no hazard or 2) that they have developed a response plan that will reasonably protect their employees from harm. (Environmentalsafetyupdate).

Although there are legitimate workplace safety concerns, in dealing with the threat of Ebola, employers must not run afoul of federal or state disability laws and or laws that protect employee medical information. The Americans with Disabilities Act (“ADA”) precludes employers from questioning employees about their health or medical condition without a legitimate business justification.  Employers also may not disclose medical information of employees.  Compliance with OSHA is likely a legitimate business justification for requesting medical information, however,  it will only be legitimate if an employer has a reasonable basis to believe an employee may have been at risk for exposure.  For example, if the employee is showing any of the symptoms of Ebola after recent travel to an infected region, the employer will have a reasonable basis to take steps to protect other employees and may request the employee at issue seek a medical examination before returning to work.  (http://blogs.wsj.com/riskandcompliance/2014/08/11/the-morning-risk-report-ebola-and-the-americans-with-disabilities-act/)

In general, it would be wise for employers not to overreact, particularly given the current contained nature of the virus in the US.  However, staying informed to be able to respond swiftly, effectively and lawfully should the threat be realized is critical. Employers should regularly consult the CDC for guidance on spotting symptoms and protocol for preventing the virus’ spread. Additionally, a look at the EEOC’s guidance on pandemic flu is instructive: http://www.eeoc.gov/facts/pandemic_flu.html.

 For Further Reading on Ebola and Ebola in the workplace visit:

http://www.cdc.gov/vhf/ebola/

http://www.cdc.gov/niosh/topics/ebola/

Also, USA Today posted a story about Target leaving behind their data breach for the holiday season. That article can be found here:

http://www.usatoday.com/story/money/business/2014/10/21/target-holiday-plans/17663057/

Our Blog post about Target and other Data Breaches can be found here:

https://www.perezmorris.com/blog/proposed-legal-ramifications-for-retailers-suffering-from-data-breaches/

Post authored by Sarah Perez and Daniel Broidy

October 16, 2014

Training Middle Management Can Save Millions When Faced With Whistleblower Situations

According to a recent Wall Street Journal article (WSJ.com/blog) a vast majority of whistleblowing employees go to the manager or supervisor they trust most with their concerns, which often tends to be an employee in middle management. In fact, 95% of all incidents are reported straight to managers, not hotlines (Corporate Secretary). Because of this, it is essential that businesses train their middle management to appropriately handle whistleblower situations. If untrained, there can be huge financial and public relations implications.

Unfortunately however, according to Christine Chi, General Counsel of Financial Crime Compliance and Co-Head of the Global Internal Investigations Group at HSBC Holdings PLC, “[h]aving sophisticated enough personnel to engage in a meaningful and responsible back-and-forth with someone who’s raised concerns…takes a lot.” So, what is the value to the company to invest in training and personnel who are sophisticated enough to handle these situations?

The two biggest fears, which stop whistleblowers from coming forward, are (1) fear of retaliation and (2) fear that no action will be taken to stop the issue (Corporate Secretary). According to a recent study, 62% of all whistleblowers lost their jobs, 18% felt they were harassed or transferred, and another 11% had their job responsibilities or salaries reduced (http://ethics.csc.ncsu.edu/). With trained middle management who know how to appropriately act in whistleblower situations, companies have an opportunity to investigate and take corrective action regarding any internal problems.  Without a trained middle management, companies risk situations similar to GM’s (Philly.com) whose management ignored a whistleblower regarding faulty Chevy Cobalt parts, which led to 13 deaths and 54 accidents (businessweek), or Trader Joe’s who is currently being sued by a former employee for allegedly firing him for whistleblowing (Northjersey.com/traderjoes). In Trader Joe’s case, the employee was allegedly fired for not having a “sense of fun” for reporting spoiling food, rodent droppings and faulty coolers and freezers.

Addressing and fixing internal issues as they present themselves and before they become a financial and legal hardship is absolutely paramount for businesses.  Case and point: GlaxoSmithKline agreed to a $3B settlement for misbranding their drug Paxil (among other things); Merck, Sharp, & Dohme, agreed to a $950M settlement for misleading doctors regarding their drug Vioxx (ConstantineCannonWhistleblowerSuccesses); and GM was forced to recall 20 million vehicles after ignoring a whistleblower who tipped them off to serious problems.

Many of these examples started as small problems and were ignored or never fully corrected by the company, forcing whistleblowers take their complaints outside the business, to places like the SEC. Just last year, the SEC gave out their biggest award ever, when they awarded an anonymous whistleblower $14M (Shrm.org). As the awards and whistleblower protection laws grow, it is imperative that businesses both stay out of trouble, and have trained management to deal with any and all whistleblower issues. If businesses train their middle management to deal with issues brought forth by whistleblowers in efficient and effective ways, it may have extra costs up front, but they may be able to save themselves millions (or even billions) in prevented lawsuits, regulatory agency issues, and public relations nightmares.

 

For more reading on whistleblowing check out these links:

Post by: Sarah Crabtree Perez and Daniel Broidy

October 13, 2014

P&M Community Spotlight: The Gathering takes on a New Identity

Our attorneys were privileged to attend this month’s Leadership Prayer Breakfast presented by the organization formerly known as The Gathering/Columbus.  The Gathering announced at the close of the breakfast it is undergoing a makeover, at least in name.  The organization will now be known as Relā (pronounced Re-lay) and will continue  its focus on bringing together people of faith across all sectors of the business community and relaying their compelling and inspiring stories of faith.  For more information regarding the name change and vision of Relā visit: www.relaleadership.org.

October 13, 2014

A Small Spill Creates a Big Mess

Donnea Collins of Louisiana is suing Whole Foods for what she contends was negligence on the part of the retailer. The suit alleges that Ms. Collins slipped and fell on a “liquid” while shopping in the produce section of her local store. Ms. Collins’ lawyers contend Whole Foods should have known about the issue and cleaned it in an appropriate manner. Additionally, according to the lawsuit, Whole foods is accused of “failing to maintain the premises, failing to periodically inspect and clean, failing to keep the premises clean, failing to warn of a dangerous condition and failing to place warning signs.”

This is not the first time Whole Foods has been sued due to a slip and fall issue. In 2010, a Whole Foods in Pennsylvania was sued for $50,000 when a customer slipped and fell and sustained injuries which necessitated medical attention.

To determine whether there is liability in slip and fall cases, the courts look at:

(1)   Actual or constructive knowledge of some condition on the premises by the owner/operator;

(2)    That the condition posed an unreasonable risk of harm;

(3)    That the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and

(4)   That the owner/operator’s failure to use such care proximately caused the plaintiff’s injuries

 (Wal-Mart Stores, Inc. v. Ortiz, 2000 Tex. App. LEXIS 5199; Keetch v. Kroger, 845 S.W.2d 262, 264 (Tex. 1992); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983).

For a company such as Whole Foods to escape liability they often must prove that they could not have known about such dangers and thus they do not fail the reasonableness standard. Will Whole Foods be held liable in this new case? Read more here: http://dailyinbox.com/woman-goes-after-whole-foods-company-after-slip-and-fall-accident/.

 Post by Sarah Perez and Daniel Broidy

September 29, 2014

Proposed Legal Ramifications for Retailers Suffering from Data Breaches

What do Michaels Stores, PF Chang’s, Neiman Marcus, Goodwill, and Target have in common? They’ve all suffered large data breaches in the past twelve months, leaving millions of consumers at risk. With the recent news that Home Depot is being investigated for a data breach that could be the largest of all time (over 110 million consumer records breached), retailers now face a harsh reality: the enactment of new state and federal laws holding them accountable to consumers.

Currently, State and Federal law is relatively lenient toward retailers confronted with breaches. Retailers are not liable for any of the costs to financial institutions for breaches, such as replacement cards (which cost $5-$10 per card to replace), or account monitoring. Presently, retailers are only required to pay for the losses that occur in their stores in the form of chargeback refunds (https://www.dalpay.com/en/support/chargebacks.html).

Yet, even without statutory liability, retailers still suffer millions of dollars in losses for every breach that occurs.. According to a report from the Ponemon Institute (http://www.ponemon.org/blog/ponemon-institute-releases-2014-cost-of-data-breach-global-analysis), the average cost to a company for a breach of data is $3.5 million, up 15% from 2013. However, recent breaches by big-named retailers such as Target (whose data breach affected over 100 million consumer records) can cost companies hundreds of millions of dollars. These losses come from replacing inventory, paying chargeback refunds, and from drops in revenue and stock price due to consumer concern. According to LexisNexis, the average merchant lost .68% of annual revenue to fraud in 2013, but the total costs is a higher multiple of that (http://www.lexisnexis.com/risk/downloads/assets/true-cost-fraud-2014.pdf). Essentially, for every $1 lost to fraud, retailers had to spend $3.08 to replace lost inventory and cover chargeback fees and other penalties.

Now, to add insult to injury, new laws have been proposed that could add more liability to retailers for future data breaches. For example, California has proposed Bill AB 1710, which would hold retailers liable for reimbursing any financial damages to their customers due to security breaches regardless of where the breached credit card information is used. Kentucky, New Mexico, Iowa, Minnesota, and Florida have also proposed security data laws, which could affect the future of retailer’s breach liability (http://www.mondaq.com/unitedstates/x/326416/Data+Protection+Privacy/New+and+Proposed+US+Data+Breach+Notification+Laws).  Additionally, Attorney General Eric Holder has called for Congress to pass more stringent federal laws regarding customer notification after data breaches, which could lead to even more rigorous standards in the near future.  All of these potential new standards will need to monitored and will certainly add up to extra costs for retailers who suffer data breaches.

Author: Troy Morris and Daniel Broidy

September 25, 2014

John Perez Presents CLE on Attorney-Client Privilege in the Digital and Global Age

John Perez, along with a handful of panelists from law firms and large companies across the country, presented a continuing education course at the NAMWOLF Annual Meeting on emerging trends in attorney-client privilege, focused on the new developments particularly applicable to in-house counsel.  The session covered best practices for preserving privilege when using company email, company owned devices and social media/social networking applications.  The presentation also covered best practices for internal investigations and for preserving privilege when communicating multinationally.  If you would like access to any of the materials created by Perez & Morris for this CLE presentation or to learn more about how you can best protect your company’s confidential and privileged communications, contact [email protected].

September 25, 2014

P&M TAKES PHILLY–NAMWOLF ANNUAL MEETING A HUGE SUCCESS

Congratulations to the National Association of Minority and Women Owned Law Firms (“NAMWOLF”) and all of the law firm and in-house counsel members responsible for putting together such a successful Annual Meeting this year in Philadelphia. From the Philly cheesesteaks at the Reading Terminal to the final evening event at Lucky Strike downtown Philadelphia, Perez & Morris had a fun, productive, and memorable time. NAMWOLF’s Annual Meeting brings together the top minority and women owned law firms each year for the purposes marketing and business development, increasing awareness of the superb capabilities of the law firms in attendance and continuing education. This year’s meeting certainly did not disappoint.

September 3, 2014

P&M TO ATTEND NAMWOLF ANNUAL MEETING IN PHILADELPHIA

Perez & Morris announces its plans to attend the 2015 Annual Meeting of the National Association of Minority and Women Owned Law Firms (“NAMWOLF”) this month in Philadelphia.  As a minority-owned law firm, P&M has been a proud member and supporter of NAMWOLF for several years and is pleased to be able to participate in the Annual Meeting this year, including presenting a CLE for in-house counsel and other law firms on emerging legal trends and developments in the area of attorney-client privilege.  See you in Philly!