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Did my Client Just Waive Privilege?!

For any attorney, whether new or seasoned, this can be a terrifying possibility. Privilege waivers can happen at any time and can have devastating consequences for your client’s case. This possibility is made even more precarious when one considers that jurisdictions have varying guidelines when it comes to what constitutes a waiver.

COVID-19 Update: EEOC Vaccine Incentive Programs

On May 28, 2021, the Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 related technical assistance document, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” which can be found here (“WYSK”). This document was first published on March 19, 2020, and was last updated, as we noted in this previous WorkSmarts update, on December 16, 2020. Although the recent update was published without consideration of updated guidance from CDC for fully vaccinated individuals issued on May 13, 2020, it still contains valuable guidance for employers with respect to vaccines in the workplace.

Whistle Blowers Claim Colorado Air Pollution Control Division Violates the Law

Three air quality modeling staff ask the EPA Inspector General to investigate

In a letter to the U.S. Environmental Protection Agency (EPA) dated March 30, 2021, three self-styled “whistle blowers” who serve as air quality modelers working in the Air Pollution Control Division (APCD) of the Colorado Department of Public Health and Environment (CDPHE) asked EPA’s Inspector General, Sean W. O’Donnell, to open an investigation into policy decisions made by the agency. See letter here.

To Mask or not to Mask – Questions in Light of new CDC Guidance

On May 13, 2021, the Centers for Disease Control and Prevention (CDC) made a surprising announcement: individuals who are fully vaccinated no longer need to wear masks or maintain social distance in most indoor spaces. Individuals are considered fully vaccinated two weeks after their second dose of the Pfizer or Moderna vaccine or two weeks after a single dose of the Johnson and Johnson vaccine.

Greater Sage Grouse Habitat – Bureau of Land Management Will Reevaluate Land Withdrawals

At Issue? Impacts on 10 million acres of public lands

On May 11, 2021, the Bureau of Land Management (BLM) announced it will take another look at its greater sage grouse conservation plans and the agency’s process related to the possible withdrawal of up to 10 million acres of habitat from mineral location and entry.  See the BLM announcement here.

The agency’s long-delayed announcement comes after two federal court judges ordered the agency to re-think its plans: (1) a May 2020 federal Court’s decision in Montana vacating oil and gas lease sales on BLM lands in Wyoming and Montana [see opinion here], and (2) a February 2021 federal Court’s decision in Idaho that vacated the Trump administration’s decision to stop withdrawal of millions of acres of public lands for mineral development [see opinion here].  The focus of the courts’ opinions is BLM’s management plans that were designed to support sagebrush ecosystems on which sage grouse rely.

DOL Withdraws FLSA Independent Contactor Rule

On May 5, 2021, the United States Department of Labor (“DOL”) withdrew the regulations (i.e. the “Independent Contractor Rule”) that were intended to clarify the standard for determining whether a worker qualifies as an independent contractor for FLSA purposes. See DOL Press Release, US Department of Labor to Withdraw Independent Contractor Rule (May 5, 2021); see also Independent Contractor Status Under the Fair Labor Standards Act: Withdrawal, 86 FR 24303 (Published: May 6, 2021). The withdrawal of the Independent Contactor Rule is effective as of May 6, 2021.

The Anatomy of Lost Profits Claims in Franchise Cases

Originally Published in Franchise Law Journal

Claims seeking the recovery of lost profits are becoming increasingly more common in franchise litigation, particularly after franchise termination.  Because both the franchisor and the franchisee enter into the relationship with the expectation of profit, a termination frustrates both sides’ expectations and the economic rationale for entering the relationship in the first place.  Although historically franchisees were more likely to assert these claims in reaction to terminations, more recently franchisors have also pursued such claims when franchisees leave the relationship before the end of the contract term.  This article provides a brief history of the law governing claims for lost profits, outlines selected issues facing litigants under the current slaw, and concludes by offering some opinions about best practices for litigants relating to lost profits, particularly in the franchise context.

DOL Issues Cybersecurity Guidance

On April 14, 2021, the Department of Labor’s Employee Benefits Security Administration (“EBSA”) issued cybersecurity guidance for retirement plan fiduciaries and service providers, as well as plan participants.  In the guidance, the EBSA states that ERISA fiduciaries are required to take appropriate steps to mitigate internal and external cybersecurity threats to plan participants and retirement plan assets.   To assist fiduciaries  and service providers in fulfilling this obligation, the EBSA issued two documents that describe cybersecurity best practices – Cybersecurity Program Best Practices and Tips for Hiring a Service Provider.  The EBSA also issued some basic rules – Online Security Tips – to help participants reduce the risk of fraud and loss to their retirement accounts.

The Eleventh Circuit Calls Into Question the use of Letter Vendors as Violative of the FDCPA

The Eleventh Circuit in Hunstein v. Preferred Collection and Management Services, Inc. issued an opinion yesterday that confronted an issue of first impression, namely, whether a debt collector can use a third party vendor to send collection letters without violating the Fair Debt Collection Practices Act (“FDCPA”).  The facts were simple.  The defendant/debt collector used a third party letter vendor to send an initial “dunning” letter to the plaintiff/consumer.  In doing so, the defendant provided the vendor with the plaintiff’s name, his outstanding balance, the fact that his debt resulted from his son’s medical treatment, and his son’s name.  The plaintiff filed a lawsuit alleging that the defendant violated the FDCPA by disclosing his personal information to the third-party vendor.

Three Quick Steps to Help Prepare Your Business for Cyber Threats

Nearly Half of all Businesses hit by Cyber Attacks in 2020

43% of businesses in the United States and Europe were hit with a cyber attack in 2020, an increase of 5% from 2019 which was 38%, according to Hiscox’s Cyber Readiness Report. Businesses cannot ignore this threat and must face it head-on. All businesses should now have an operational and maturing cyber risk management program in place that is led by their trusted cyber legal counsel.

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