Recent Publications - Shari Claire Lewis


Equifax: Why This Data Breach Is Different from All the Others
December 7, 2017 | Shari Claire Lewis | Amanda Gurman | Privacy, Data & Cyber Law
Shari Claire Lewis and Amanda Gurman authored an article, “Equifax: Why This Data Breach Is Different from All the Others,” which appeared in the November 2017 edition of Westlaw Journal White Collar Crime. To read the article, click here. …
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Lawsuits Highlight Looming Requirements for Handicapped-Accessible Websites
October 26, 2017 | Shari Claire Lewis | Nancy A. Del Pizzo | Privacy, Data & Cyber Law
Today, most businesses are e-businesses, and all e-businesses should take note. There has been an explosion in the number of lawsuits filed in the Federal Courts seeking damages and injunctive relief under Title III of the Americans With Disabilities Act, 42 U.S.C. § 12182(a) (the “ADA”) based on alleged failures to provide accommodations that enable …
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Does Our Digital Age Require New Fourth Amendment Rules?
October 17, 2017 | Shari Claire Lewis | Privacy, Data & Cyber Law
It’s 10 p.m. Your cellphone knows where you are. It also knows where you are at 10:00 in the morning, at 7:00 in the evening, and at noon and midnight and at every other moment of the day. We live in a world where cellphones are omnipresent. We have them at home, at work, and …
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Equifax Breach Update
September 13, 2017 | Shari Claire Lewis | Privacy, Data & Cyber Law
Equifax’s response to its recent data breach is evolving, and so should yours. Piling on to the initial public fury regarding Equifax’s announcement of its data breach weeks after it occurred is the outrage that many feel about the credit reporting agency’s response. Cyber pundits and the public at large were particularly peeved by Equifax’s …
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How to Respond to the Equifax Security Breach
September 8, 2017 | Shari Claire Lewis | Privacy, Data & Cyber Law
Yesterday, Equifax, a company whose credit services are central to the financial activities of virtually every American, announced a massive security incident described by its CEO as an event that struck at the heart of what Equifax does. Approximately 143 million U.S. consumers had personal information, such as their names, social security numbers, birth dates …
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Social Media Grabs the U.S. Supreme Court’s Attention
August 15, 2017 | Shari Claire Lewis | Privacy, Data & Cyber Law
It is a truism that law often lags technology. Near the end of the U.S. Supreme Court’s past term, the court issued a decision in which the majority opinion, by Justice Anthony Kennedy, recognized the importance of social media in most people’s lives. The ramifications of the court’s statements about social media, in Packingham v. …
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Asserting Damages for Data Piracy Under the CFAA
June 20, 2017 | Shari Claire Lewis | Privacy, Data & Cyber Law | Professional Liability | Complex Torts & Product Liability
Data often is the lifeblood of a business. When a database is breached in one way or another, the results can be devastating—especially if the data falls into the hands of a competitor. Many companies suffering this kind of loss turn to litigation. Perhaps in an effort to obtain federal court jurisdiction, they may assert …
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ABA Issues New Guidance on Confidentiality and the Use of Technology
May 17, 2017 | Privacy, Data & Cyber Law | Professional Liability
The American Bar Association’s Standing Committee on Ethics and Professional Responsibility recently issued a Formal Opinion, providing updated recommendations regarding lawyers’ obligations when using technology resources to communicate with clients and to protect confidential client information. Since 1999, the Committee has advised that the ABA Model Rules of Professional Conduct permit an attorney to transmit …
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UK Health System Infected by Ransomware
May 12, 2017 | Privacy, Data & Cyber Law | Health Services
In a cautionary tale for all companies, but especially healthcare organizations, on May 12, 2017, multiple news sources reported that a broad cyberattack using ransomware caused substantial interference with critical systems across Europe, Russia and Asia. (See e.g., New York Times, BBC News and Silicon Angle.) According to the New York Times, the  attacks were …
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Second Circuit Rejects Secret-Cookie Suit
April 21, 2017 | Privacy, Data & Cyber Law | Professional Liability | Complex Torts & Product Liability
By now, anyone who uses a cell phone or other method to access the Internet—virtually everyone—has heard of “cookies” intended to track their online activities. Many individuals who object to tracking take steps to block cookies through privacy settings on their web browsers and other technologies. However, in a decision with important implications for those …
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FDA Addresses Cyber-Security Risks in Connected Medical Devices
March 21, 2017 | Privacy, Data & Cyber Law
The “Internet of Things”  has pervaded every facet of our society thereby introducing unanticipated cyber risks into everyday life. Often overlooked and particularly disconcerting are the cyber risks inherent in connected medical devices. Nevertheless, caregivers and patients alike should be aware that any medical device that depends on interactive computer technology may be vulnerable to …
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Online and Social Media Defamation in Today’s Age
February 21, 2017 | Privacy, Data & Cyber Law | Professional Liability | Complex Torts & Product Liability
Twitter, Facebook, Instagram, and other forms of social media are becoming the dominant communication tools in today’s political and social discourse, often entirely supplanting traditional media’s role in public commentary. Social media’s emerging role, combined with the extreme divisions so evident in our country, have caused the courts to consider application of pre-Internet legal standards …
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Self-Proclaimed Publisher of Fake News Sites Loses Circuit Appeal
December 21, 2016 | Privacy, Data & Cyber Law | Professional Liability | Complex Torts & Product Liability
Fake news has been in the news a great deal recently, with some wondering how to address it. The recent decision by the U.S. Court of Appeals for the Second Circuit in Federal Trade Commission v. LeadClick Media , 838 F.3d 158 (2d Cir. 2016), may provide a way, at least in some instances. In …
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Sixth Circuit’s Decision on Privacy Claims Over Data Breaches
October 18, 2016 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
Data breaches such as the one Yahoo recently revealed (500 million accounts!) get the big headlines. In response, large companies double down on their efforts to protect the security of their data. But small to midsize businesses often fail to appreciate the risk of a data breach to their own business. They may believe that …
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Lessons From Privacy-Related Enforcement
August 16, 2016 | Privacy, Data & Cyber Law | Professional Liability | Health Services
Federal and state regulators are bringing more and more enforcement proceedings to challenge the adequacy of corporate privacy practices. Although the best course for businesses is to be proactive and develop privacy rules that meet all applicable requirements before government steps in, a review of various privacy-related settlements that agencies recently have reached suggests a …
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FTC Issues Privacy Tool, Guidance for Health-Related Mobile Apps
June 21, 2016 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
Only days after the Federal Communications Commission (FCC) adopted a notice of proposed rulemaking to establish privacy guidelines applicable to Internet service providers (ISPs),1 the Federal Trade Commission (FTC) took two actions on the privacy front that will affect a smaller, but fast growing, industry: developers of mobile health applications. Given the pervasive use of …
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FCC Proposed Rules That Impact Everyone’s Online Privacy
April 19, 2016 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
“Broadband Internet access service” (BIAS) is the essential conduit for the conduct of our daily personal and private lives, without which all Internet activity comes to a stop. Indeed, the Federal Communications Commission recently referred to BIAS as “the most significant communications technology of today.”1 Nevertheless, because BIAS is the road on which Internet traffic …
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The EU-U.S. Data Protection Dispute and Possible Resolution
February 18, 2016 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
Early in February, the European Commission and the U.S. government agreed on a new framework for transatlantic data flows, which they are referring to as the “EU-U.S. Privacy Shield.” Lawyers advising clients with an online presence (i.e., almost all lawyers and almost all clients) typically have had little reason to be concerned about the agreement, …
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Standing to Assert Claims for Online Privacy Breaches
December 15, 2015 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
Many believe that we are on the precipice of a deluge of litigation—both individual and multiparty/class action—concerning how an individual’s data is handled and the remedy, if any, if that data is misused or wrongfully disclosed. A case recently argued before the U.S. Supreme Court involves the intersection of the Internet and privacy laws and …
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Fifth Amendment Does Not Extend to ‘Digital Person’
October 20, 2015
An acrimonious marital breakup has been known to bring out the worst in some people. Those battles increasingly are fought on the technology field, thereby leaving courts to determine complex personal rights issues in the context of grown-ups behaving badly.1 In another such case, Crocker C. v. Anne R.,2 the Supreme Court, Kings County, addressed …
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Circuit Clarifies Time Limit for Computer Hacking Suits
August 18, 2015
Computer hacking historically has been seen as the province of lowlife criminals existing in the darkened recesses of some faraway place looking to make a dishonest buck. However, as individuals increase their online presence and, thereby, their digital vulnerability, unauthorized access to a person’s computers and to email and social media accounts is increasingly being …
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Court Overturns ‘Threat’ Conviction, But Leaves Mens Rea Standard Unclear
June 16, 2015 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
The U.S. Supreme Court has ventured into the world of violent online speech. On June 1, in Elonis v. United States,1 the court overturned a defendant’s criminal conviction for communicating threats on Facebook. The court ruled that a mens rea standard of negligence was insufficient to allow the conviction to stand, but it did not …
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‘Sign-in Wraps’ Face the Judicial Microscope in New York
April 21, 2015
There are, generally speaking, four different kinds of online contracts that businesses use to obtain consent via the Internet from consumers: browsewrap, clickwrap, scrollwrap, and sign-in wrap agreements. Browsewrap exists where an online host dictates that assent is given merely by using the site. Clickwrap refers to the assent process by which a user must …
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Tech Tools Are Increasingly Used to Disseminate Notice
February 17, 2015 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
Federal Rule of Civil Procedure 23 requires two forms of class notice. Rule 23(c)(2) requires notice to a potential class member that a class has been certified and substance of the class claims. Rule 23(e) requires notice that a settlement has been negotiated, which will require court approval, and the steps that each potential class …
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Court of Appeals Rejects Claim of Internet-Based Jurisdiction
December 16, 2014 | Intellectual Property
Long-arm jurisdiction over non-domiciliaries is an issue that continues to  bedevil practitioners and litigants in the Internet age. In New York, CPLR  302(a)(1)1 authorizes jurisdiction over a non-domiciliary that  “transacts any business” within the state. The test, however, can be difficult  to apply when a commercial entity uses technology to project itself into New  York …
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Circuit’s Decision Clarifies Law Of Contributory Cybersquatting
October 28, 2014 | Privacy, Data & Cyber Law | Professional Liability | Complex Torts & Product Liability | Intellectual Property
Nearly 15 years ago, Congress passed the Anticybersquatting Consumer Protection Act (“ACPA”).[1] The ACPA amended the federal trademark law known as the Lanham Act by adding two new causes of action aimed at cybersquatting.[2] Under the ACPA, a person may be civilly liable “if … that person has a bad faith intent to profit from …
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Court Addresses Bitcoin, Other Novel Online Technology Issues
August 19, 2014 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
Online technology, as this column frequently has noted, presents numerous challenges to attorneys during litigation,[1] while managing their firms and marketing their services,[2] and in trying to keep up with the newest legal developments and rulings.[3]  A recent decision in a case of first impression by Judge Katherine B. Forrest of the U.S. District Court …
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Website Terms of Use: Recent New York Rulings
June 17, 2014 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
On a nearly daily basis, each of us is asked or asks others to agree to be bound by “terms of use” or “terms of service” (TOS) as a condition of using an Internet website or obtaining goods or services offered through a website. Whether or not TOS are enforceable continues to be a question …
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First Amendment Protects Search Engine Results
April 15, 2014 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
In an ironic twist, China’s largest search engine, Baidu, has successfully argued that it was entitled to First Amendment protection in regard to its search engine results in the United States, which excluded statements by the plaintiffs, a group of New York residents who “advocated” for “the Democracy movement in China.”   In a question of …
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Defamation Claims Come of Age on the Internet
February 18, 2014 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
All of the elements necessary for defamation claims seem to have coalesced on the Internet. There is the ease of posting content, including videos, on blogs and chat sites; the ubiquity of tweets, email, blogs and text messages; the pervasive abandonment of personal privacy; and the ability for almost anyone to quickly set up a …
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Accessing Email Evidence on Company Computers
December 17, 2013 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
Work-related email accounts are ubiquitous and often are used by employees for personal reasons. Employees also may use their own personal email accounts on employer provided resources ? with or without the permission of the employer.  Many cases have considered the right of an employer to access an employee’s email accounts from the employee’s work …
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The Role of the Internet in the Conduct of Litigation
October 15, 2013 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
Much has been written (in this column and elsewhere) regarding lawyers’ adoption of social media and other Internet enabled applications for such diverse purposes as discovery, advertising, client communication,  research and the like.  Indeed, due to the proliferation of portable devices, including laptops, smartphones and tablets, whether in their offices or not, lawyers now rely …
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Email Can Constitute Binding Enforceable Stipulation of Settlement
August 20, 2013 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
Plus ça change, plus c’est la même chose.[1] It is a lesson that lawyers should take to heart when incorporating technology in their every day best practices.  Technology may have changed the speed, immediacy, and even the formality of communication, but the effect of the communication will be determined by its content as interpreted by …
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When Judges ‘Friend’ Lawyers: Must Recusal Necessarily Follow?
June 18, 2013 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
It should be no surprise that the continuing growth of social media tools such as Facebook, Twitter, and LinkedIn has led to questions about its use by members of the legal community, including members of the judiciary. In fact, New York’s Advisory Committee on Judicial Ethics[1] has just issued another opinion[2] exploring the ethical constraints …
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Online Retailers Lose Challenge to New York’s Sales Tax
April 16, 2013 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
In a case that has far-reaching ramifications because of the exponential expansion of cyberspace in general, and because of the growth of commerce over the Internet in particular, the New York Court of Appeals has rejected challenges by two major online retailers to New York’s “Internet tax,”[1] which requires collection of a sales tax on …
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Court Clarifies Copyright Issues of Online Photo Posting
February 19, 2013 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
Various social media tools, from TwitPic and Instagram to Flickr and Pheed, enable ? indeed, encourage ? users to post their photos online.[1]  Posting a “real time” image from the Mideast, a political event, the Super Bowl, or a snowstorm can be informative and even exhilarating for both the poster and the viewer.  However, there …
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Courts Confront the Question of Service by Facebook
December 18, 2012 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
Under New York law, service of process may be effected by: (1) personal service; (2) delivery to “a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served” and mail; (3) service on an agent; or (4) so-called “nail and …
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Ethical Issues Arise in Lawyer’s Use of Social Media
October 16, 2012 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
As with most of the population, the use of social media by lawyers in the conduct and marketing of their legal practices has been “trending” up.[1]  Although well-established ethical rules apply, some social media activity may introduce new twists to the rules’ interpretation or raise issues that a lawyer may not have considered before posting …
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ABA Approves Changes to Technology-Related Ethics
August 14, 2012 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
The headline could read “ABA drags lawyers, kicking and screaming, into the 21st Century,” but that would not tell the whole story. In reality, for the past decade or more, lawyers have increasingly relied on technology to practice law, but that reliance has grown so incrementally that its potential impact on ethical responsibilities may not …
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A Landscape View of Privacy Protection Issues
June 30, 2012 | Professional Liability | Appeals | Complex Torts & Product Liability | Employment & Labor | Intellectual Property
Please click the link below to view “A Landscape View of Privacy Issues.” Adobe Reader is required to view the bulletin. If Adobe Reader is not installed on your PC, click here to download and install. A Landscape View of Privacy Issues Reprinted with permission.  All rights reserved. …
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Music To Their Ears: What’s An ASCAP License Worth?
June 26, 2012 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
The American Society of Composers, Authors and Publishers (“ASCAP”), which represents music composers, writers, and publishers and which has the non-exclusive right to license the non-dramatic public performances of its members’ music, was formed in 1914.[1] As technologies have evolved over the past century, so has ASCAP’s role.  It is inconceivable that performers at the …
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‘Deal of the Day’ Marketing Approved for New York Lawyers – With Caveats
April 17, 2012 | Professional Liability | Appeals | Complex Torts & Product Liability
Lawyers are not immune from the call of the Internet and the growing marketing opportunities that it represents. Lawyers who provide services to small businesses and individuals are particularly attracted to Internet applications that enable them to target potential clients before the client walks in the firm’s door.  Lawyers that use these Internet applications are …
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FDA Issues Draft Guidance on Social Media Off-Label Use Questions
March 9, 2012 | Professional Liability | Appeals | Complex Torts & Product Liability
In its ongoing efforts to address the “rapid growth of the Internet, including social media tools and other emerging technologies,” and its use by medical professionals, consumers and drug and medical device manufacturers and distributors, the Food and Drug Administration (FDA) recently issued a draft guidance proposing ways that a drug or device company may …
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Second Circuit Allows Broad School Oversight of Social Media
December 20, 2011 | Professional Liability | Appeals | Complex Torts & Product Liability
Courts across the country – including a number of federal circuit courts of appeals – continue to struggle with the ability of public school districts to discipline students for offensive online speech made off campus.[1] This past April, in Doninger v. Niehoff, the U.S. Court of Appeals for the Second Circuit weighed in on the …
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“Telecommuting Employee” Insufficient For Jurisdiction
October 18, 2011 | Professional Liability | Appeals | Complex Torts & Product Liability
The Internet continues to lead to interesting issues of personal jurisdiction arising in cases in New York courts. For instance, the New York Court of Appeals has granted leave to appeal in a case in which the plaintiff is asserting claims for defamation and argues that the trial court should assert long-arm jurisdiction over the …
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Website Operators Found Immune Over Comments
August 16, 2011 | Professional Liability | Appeals | Complex Torts & Product Liability
More than a decade ago, in Lunney v. Prodigy Servs. Co.,[1] the New York Court of Appeals declined, as premature, a request to decide whether to adopt a broad interpretation of immunity for Internet service providers (“ISPs”) under Section 230[2] of the federal Communications Decency Act (“CDA”).[3] In the intervening years, Internet use has exploded …
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Federal Decision Supports Online Political Parody
June 21, 2011 | Professional Liability | Appeals | Complex Torts & Product Liability
Parody has long played an important role in intellectual property law, and in intellectual property litigation. It should be no surprise, therefore, that parody issues arise with respect to the Internet, and that over the years courts have issued a number of significant decisions involving claims of parody and the Web. Earlier this year, The …
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Ruling Clarifies Situs of Injury For Online Infringement Claims
April 19, 2011 | Professional Liability | Appeals
The decision in Penguin Group (USA) Inc. v. American Buddha[1] is likely to significantly affect the publishing and entertainment industries in New York in their efforts to retain copyright control over online materials, from books to movies, music and other products. Moreover, the ruling may influence courts across the country dealing with litigation involving claims …
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Courts Grapple With Discovery of Posts
February 15, 2011 | Professional Liability | Appeals
Social media allows users to post their photos and videos online and discuss their lives, health, and interests. Indeed, Facebook recognizes that “one of the primary reasons people use Facebook is to share content with others. Examples include when you update your status, upload or take a photo, upload or record a video, share a …
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Terminating Employees For Unapproved Posts
December 21, 2010 | Professional Liability | Appeals
Once the bastion of college students and computer geeks, social media[1] are now established means of communication for mainstream society – be it commercial, political or personal speech. Businesses increasingly rely on social media to create “buzz” around their products and services, effectuate deals and sales and provide key customer-business interfaces, among other things. Obviously, …
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Politicians Battle Cybersquatters
October 19, 2010 | Professional Liability | Appeals
The midterm elections, now just two days away, have been marked by explosive growth in the use of Web 2.0 tools such as online social networking and blogging in an effort to garner support and electrify voters. The sophisticated nature of today’s political campaigns makes the results of a recent survey by the Coalition Against …
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The Need to Redact Personally Identifiable Data from E-Filings
August 17, 2010 | Professional Liability | Intellectual Property
Electronic filing of court documents has become the norm rather than the exception both here, in New York federal and state courts, and around the country. The trend is driven by the pervasive availability of online technology to conveniently enable filing, as well as the generally held presumption in U.S. jurisprudence that court proceedings are …
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The Ins and Outs of Attorney-Corporate-Client Privilege
June 30, 2010 | Professional Liability | Intellectual Property
Please click the link below to view the The Ins and Outs of Attorney-Corporate-Client Privilege. Adobe Reader is required to view the bulletin. If Adobe Reader is not installed on your PC, click here to download and install. The Ins and Outs of Attorney-Corporate-Client Privilege © 2010 DRI. All rights reserved. …
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Risks of the Consumer Product Safety Commission’s Database
June 15, 2010 | Professional Liability | Intellectual Property
On May 24, the Consumer Product Safety Commission (“CPSC”) issued a notice of proposed rulemaking[1] to effectuate the establishment of a statutorily mandated, publicly available, searchable online database containing consumer product safety information. The database is required by Section 212 of the Consumer Product Safety Improvement Act of 2008, which created a new Section 6A …
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FDA to Clarify Regulation of Online Drug, Device Ads
April 20, 2010 | Professional Liability | Intellectual Property
As part of its presentation to the U.S. Food and Drug Administration about America’s increased dependence on the Internet for health information (and the role that Google can play in that regard), Google estimated that more than 100 million Americans conduct 4.6 billion health-related keyword searches annually.[1] Similarly, a study by the Pew Internet and …
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New FTC Blogging Rules Pose Risks for Corporate Advertisers
February 16, 2010 | Professional Liability | Intellectual Property
Following more than a year of public comments, the Federal Trade Commission in December enacted changes to its formal guidance[1] to advertisers as to the steps necessary to keep their endorsement and testimonial ads from running afoul of the Federal Trade Commission Act[2] and its potential consumer protection liabilities. Many of the changes were required …
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