CONSERO INSIGHTS: Consero Insights -- Legal

A federal district court issued a strong warning to the FBI for having lied to the court about the existence, production of during discovery, and relation to national security of documents that came to light when requestedunder the Freedom of Information Act (“FOIA”).

 

 

Even Little Leaguers know there’s no fourth strike.

 

Apple found itself in the legal spotlight again today, allegedly at the center of an intricate “web of express agreements” among senior executives of some of the most prominent companies in the technology and film industries. The other defendants — Google; Intel; Adobe; Pixas; Lucas Films; and Does 1-200, a group of corporations that maintain their principal place of business in California — has ties to Apple’s board of directors. In some cases, these ties are direct and obvious. In other instances, they allegedly run through then-Google CEO Eric Schmidt and Arthur Levinson, who both sat on the boards of Apple and Google at the same time. Neither individual is alleged to have participated in the conspiracy, which may have been carried out by senior executives.

 

In Doninger v. Niehoff (2d Cir. Apr. 25, 2011), the U.S. Court of Appeals for the Second Circuit held that public school (i.e., government) officials did not violate a student’s First Amendment rights by preventing her from running for senior class secretary in response to a blog entry highly critical of those officials that she posted from home during non-school hours. Under the relevant test, the court found that it was objectively reasonable for school officials to conclude that the student’s behavior was potentially disruptive of student government functions and that she was not free to engage in such behavior while serving as a class representative charged with working with the very same school officials to carry out her responsibilities.

 

Guest Post Written by Jon Neiditz & John Martin

 

In 1958, IBM’s Hans Peter Luhn defined “business intelligence” as “the ability to apprehend the interrelationships of presented facts in such a way as to guide action toward a desired goal.” Hans P. Luhn, A Business Intelligence System (IBM Journal Oct. 1958). In order to realize strategic goals, legal departments and law firms must have real-time access to business intelligence (“BI”) that is actionable intelligence by virtue of its basis in structural and consistent data integrity.

In Shearson v. United States Department of Homeland Security (6th Cir. Apr. 21, 2011), the U.S. Court of Appeals for the Sixth Circuit considered the question whether, and under what circumstances, federal agencies may exempt themselves from the Privacy Act of 1974, a federal law that sets forth and governs the collection, maintenance, use, and dissemination of personally identifiable information about individuals that is maintained in systems of records by federal agencies. The Privacy Act also provides individuals with a means by which to seek access to and amend their records, and sets forth various agency record-keeping requirements.

The State of Texas has a really big mess on its hands.

In the past week alone, the State has incurred $1.8 million to help mitigate a year-long data breach by the State’s Comptroller’s Office. Personal data of approximately 3.5 million Texans was freely available on a public available. Names and Social Security Numbers were exposed for a year on the site before the breach was detected.

When I think of the intersection of law and technology, I immediately consider the manner in which the legal system grapples with metadata, e-Discovery, data privacy, Fourth Amendment rights as they apply to GPS tracking, and countless other issues. But emerging technologies also impact the practice of law. Consider the airplane’s facilitation of mail delivery. Photocopiers. The fax machine. Electronic mail. Timekeeping. Portable devices that allow for almost constant communication with clients and colleagues.

The Securities Exchange Commission (“SEC”) settled three securities cases in July 2010 worth $550 million, $100million, and $75 million, respectively. Last year alone, the SEC and the Department of Justice (“DOJ”) settled three cases involving claims of corruption under the Foreign Corrupt Practices Act (“FCPA”). Those cases settled for $450 million, $300 million, and $200 million, respectively. Under the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”), whistleblowers who bring violations of securities law, commodities law, or the FCPA to the attention of the proper government authorities—the SEC, DOJ, or Commodities Futures Trading Commission—are entitled to between 10% to 30% of any government recovery in excess of $1 million. The SEC considers three factors in determining what percentage to give the whistleblower: (i) the significance of the information; (ii) the degree of assistance provided by the whistleblower; and (iii) the extent to which the government wants to deter the violations in question. Even at the low end of the range—assume that Whistleblower (X) receives 10% of an award of $1.1 million—that can be quite a bounty, as it has become known in Dodd-Frank Act circles.