By Zachariah DeMeola, Guest Editor, BakerHostetler.
One obstacle for named plaintiffs in proposed data breach class actions is the extent to which plaintiffs must allege an injury-in-fact to have standing. Disputes often arise about whether proactive efforts to mitigate against the potential misuse of stolen data, such as utilizing credit monitoring services, are sufficient to confer Article III standing. Since the U.S. Supreme Court issued its decision in Clapper v. Amnesty International USA, Continue reading “The Seventh Circuit Revisits Standing for Data Breach Class Actions”
Authors: Jack Greiner and Zoraida Vale, Graydon Head & Ritchey
We heard a joke the other day that went something like this. Q: “What’s the best way to keep your violin from being stolen?” A: “Put it in a viola case.” Did we mention we heard the joke on NPR? Somewhere, some classical music buffs are laughing hysterically.
But the joke illustrates an important point. Sometimes two things that look similar are actually quite different. And so it is with discovery and public records requests.
Continue reading “As Different as Violins and Violas: Why Public Records Requests Are Not the Same as Discovery”
Author: Thibault Schrepel, LL.M., Antitrust Analyst
In the late 16th century, Queen Elizabeth I of England commissioned Francis Drake to sail for America. The Queen asked him to plunder Spanish vessels on his way there. Francis Drake became a pirate commissioned by the crown. This type of “legal” pirate was called a “privateer.” They allowed nations to attack one another without the risk of being counter-attacked, because the identity and the nationality of these pirates’ employers were kept secret. Today, the spirit of those pirates is reborn. Known as “patent trolls,” these companies do not use patents for their technical aspects and are principally in the business of collecting money from others that use the patented designs or ideas, and are now employed by high-tech companies seeking to use patents against their competitors.
Continue reading “Patent Privateering: Patents As Weapons”
Author: Colin P. Pool*
The Fifth Circuit’s March 2014 decision in Planned Parenthood v. Abbott garnered attention due to the controversial legislation that it upheld as constitutional: Texas H.B. 2, which in part required abortion providers to have admitting privileges at a hospital located within thirty miles of their clinic. Critics have argued that this requirement is a legislative charade intended to force abortion providers to close, continuing a broader debate regarding the constitutionality of abortion regulations. This article reevaluates Abbott’s use of rational basis review in scrutinizing H.B. 2 by comparing it to the Fifth Circuit’s March 2013 decision in St. Joseph Abbey v. Castille, where the court used the heightened “rational basis with bite” test to find a Louisiana funeral industry regulation unconstitutional. In light of this comparison, Abbott’s rational basis analysis demonstrates a judicial double standard, and likely manifests the court’s political agenda.
Continue reading “Reevaluating Planned Parenthood v. Abbott”
Author: Colin P. Pool*
It is often said that Abraham Lincoln, “faced with some thorny issue that could be settled by a twist of language,” would ask his questioner how many legs a dog would have if you called its tail a leg. “Five,” the questioner responds. “No,” Lincoln answers. “Calling a dog’s tail a leg doesn’t make it a leg.” In a recent decision, Hauser v. Dayton Police Department, the Ohio Supreme Court effectively “called a tail a leg,” and held that an employment discrimination statute that imposes liability on “any person acting directly or indirectly in the interest of an employer” did not, in fact, impose individual liability against public-sector supervisors. In doing so, the Court arbitrarily limited the tort remedies available to public-sector employment discrimination plaintiffs, and showed its willingness to engage in intellectual dishonesty to reach these results.
Continue reading “A Tail Is Not a Leg: Statutory Interpretation Games at the Ohio Supreme Court”
Author: Sandra F. Sperino, Professor of Law, University of Cincinnati College of Law
In late June of 2013, the Supreme Court decided University of Texas Southwestern Medical Center v. Nassar. The Court held that plaintiffs proceeding on a Title VII retaliation claim must establish their protected activity was the “but for” cause of an employment decision. This holding means that plaintiffs must establish a lower “motivating factor” standard for discrimination claims and the higher “but for” standard for retaliation claims. In this regard, Nassar complicates an already tangled legal landscape.
Nassar offers a silver lining for those seeking a less complex employment discrimination jurisprudence. Two sentences hidden within the opinion resolve a central problem in employment discrimination law. Nassar clarifies that the lower courts are mistaken when they divide Title VII claims into single-motive and mixed-motive claims. This organizational dichotomy, which has plagued the courts for more then two decades, created a host of difficulties in discrimination law that affected pleading, summary judgment, and jury instructions. Nassar represents a significant shift in how courts should perceive discrimination cases.
Continue reading “Nassar’s Silver Lining”
Author: Erin M. Campbell, Esq.
Nursing home residents left to wallow in urine- and feces–soaked beds; a resident suffering from an open bedsore the size of a cantaloupe when persistent and purposeful under staffing leaves residents unturned and in unchanged diapers; residents suffering from repeat scabies infections; residents suffering very high rates of falls and perhaps even left lying overnight on the floor; residents whose diabetes is intentionally mismanaged so that the nursing home can seek higher reimbursements; residents whose untreated wounds result in amputation and death, and facilities falsifying records to hide inadequate staffing levels.
Continue reading “Why Not Protect Our Elderly, Our Pensioners, and Our State Treasury? The Case for an Ohio False Claims Act”