Emerging Litigation Podcast

The United Nations and World Economic Forum calculates that the cost of corporate corruption globally is $5 trillion a year, or 5% of the world’s 2022 GDP. 

Corruption can hamper economic growth by discouraging investment, increasing transaction costs, and distorting market competition. It can perpetuate poverty by diverting resources away from essential services and benefiting the wealthy and powerful. It can undermine democratic institutions and erode public trust in governments. It can hinder sustainable development by diverting resources away from essential infrastructure and social services.

The Foreign Corrupt Practices Act, or the FCPA – the government’s leading weapon in this global war on corporate crime – has far-reaching implications for companies engaged in international business. For those who violate it the consequences can be severe. And with the recent addition of the Foreign Extortion Prevention Act (FEPA), the federal government has even more to work with. 

I had the pleasure of learning more about this fascinating and complex area of the law by speaking with two attorneys with Reed Smith who practice in the firm’s Global Regulatory Enforcement Group. 

Mark E. Bini is a former federal and state prosecutor in New York, has led multiple multi-year cross-border investigations of corporations and individuals and has particular experience in investigations involving potential Foreign Corrupt Practices Act (FCPA) violations. As a prosecutor, he worked closely and in parallel with many domestic and foreign law enforcement agencies and regulators, including the United Kingdom’s Financial Conduct Authority and Brazil’s Ministerio Publico Federal.

Thomas H. Suddath, Jr., is a former Assistant U.S. Attorney in the Criminal Division of the U.S. Attorney’s Office in Philadelphia, has extensive experience conducting international and domestic internal investigations and frequently counsels companies on compliance and voluntary disclosure issues related to the FCPA. He has handled FCPA and other internal investigations in many countries including Russia, Poland, Turkey, Greece, Hungary, Czech Republic, Mexico and Colombia.

Thanks to Mark and Tom for sharing their insights based on decades of experience.

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This podcast is the audio companion to the Journal of Emerging Issues in Litigation. The Journal is a collaborative project between HB Litigation, a brand of Critical Legal Content (a custom legal content service for law firms and service providers) and the vLex Fastcase legal research family, which includes Full Court Press, Law Street Media, and Docket Alarm.

If you have comments, ideas, or wish to participate, please drop me a note at [email protected].

Tom Hagy
Litigation Enthusiast and
Host of the Emerging Litigation Podcast
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The DOJ’s annual report for 2023 revealed that the agency’s Health Care Fraud Unit was its busiest criminal enforcement section, responsible for convicting more than $3.8 billion in False Claims Act and whistleblower claims. There has reportedly been an uptick in whistleblower work among law firms and a record number of whistleblower cases. Still, some healthcare providers and hospital systems tend to hide their heads in their scrubs after being served. 

Today we’re going to talk about how whistleblower cases come about, the benefits of rewarding whistleblowers, how things are done differently outside the U.S., what’s driving the acceleration of this area of law, and best practices when your company is served.  

Drawing on his background as both public servant and private practitioner, my guest, Justin M. Lugar, counsel with WoodsRogers in Roanoke, Virginia, is going to walk through these issues and others. 

Justin represents clients in all types of government investigations. He’s obviously well suited for the task. Prior to WoodsRogers he was Assistant U.S. Attorney in the Western District of Virginia, where he led the Affirmative Civil Enforcement team managing dozens of fraud investigations, many of which had parallel criminal investigations under the False Claims Act and related state statutes. 

Justin served as the Department of Justice’s Civil Health Care Fraud Coordinator, Affirmative Civil Enforcement Coordinator, and Civil Rights Coordinator for the Western District of Virginia. Justin was recently recognized by the Drug Enforcement Agency for his efforts enforcing the Controlled Substances Act, leading to the largest fine assessed against a hospital system in the United States at the time.  

When he was a  federal prosecutor, Justin led investigations involving numerous state and federal agency partners, from the FBI to the IRS to the Department of Energy to the FDA and the Defense Department.  

Justin started his career at a major global firm in London, conducting international investigations around the globe.  But my favorite part of his background is – when he was a religious studies major in college – he lived at a Tibetan Buddhist Monastery in Kathmandu, Nepal. Not to brag, but I just returned from Vermont. 

There is more to Justin’s background, like his LLM in international dispute resolution, which he earned at the School of Oriental and African Studies at the University of London, his J.D. from Liberty University School of Law, and his B.A. from the University of Virginia.  

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This podcast is the audio companion to the Journal of Emerging Issues in Litigation. The Journal is a collaborative project between HB Litigation, a brand of Critical Legal Content (a custom legal content service for law firms and service providers) and the vLex Fastcase legal research family, which includes Full Court Press, Law Street Media, and Docket Alarm.

If you have comments, ideas, or wish to participate, please drop me a note at [email protected].

Tom Hagy
Litigation Enthusiast and
Host of the Emerging Litigation Podcast
Home Page
Follow us on LinkedIn
Subscribe on your favorite platform. 

How secure is our nation's critical infrastructure? One recent event serves as a cautionary tale. In this episode, we tackle this pressing question in the context of cybersecurity. We'll address President Biden's recent National Security Memorandum on Critical Infrastructure Security and Resilience,  and its implications for sectors like energy, water, and transportation.

Our guest, Elizabeth Burgin Waller, from Virginia's WoodsRogers law firm, brings her extensive knowledge in privacy and cybersecurity law to the discussion.

Join us as we discuss ransomware as a service, shedding light on its franchise-like model and the significant challenges in tracking and prosecuting these cybercriminals, especially those hiding in countries like Russia. We discuss the recent takedown of the LockBit ransomware gang under Operation Kronos, and the persistent and growing complications of IoT security.

CrowdStrike's recent software glitch, while not a malicious attack, serves as a stark reminder of the importance of testing and transparency around cyber incidents, and the vulnerability of the systems that drive critical industries. Tune in for expert insights and reflections on the evolving regulatory landscape and what it means for mitigating risk in the Digital Age.

Beth is Principal and Cybersecurity & Data Privacy Practice Chair at WoodsRogers. In addition to a J.D. from William and Mary School of Law, she is certified as a Privacy Law Specialist by the International Association of Privacy Professionals (IAPP), which is accredited by the American Bar Association, a Certified Information Privacy Professional with expertise in both U.S. and European law (CIPP/US & CIPP/E), and a Certified Information Privacy Manager (CIPM), also from the IAPP. Beth also graduated magna cum laude with a B.A. in creative writing, so maybe I should have let her write the show notes.

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This podcast is the audio companion to the Journal of Emerging Issues in Litigation. The Journal is a collaborative project between HB Litigation, a brand of Critical Legal Content (a custom legal content service for law firms and service providers) and the vLex Fastcase legal research family, which includes Full Court Press, Law Street Media, and Docket Alarm.

If you have comments, ideas, or wish to participate, please drop me a note at [email protected].

Tom Hagy
Litigation Enthusiast and
Host of the Emerging Litigation Podcast
Home Page
Follow us on LinkedIn
Subscribe on your favorite platform. 

Listen as intellectual property attorneys Tiffany Gehrke and Kelley Gordon of Marshall Gerstein in Chicago share their insights into three matters relevant anyone watching copyright and trademark law, or anyone fond of branded t-shirts and fancy French beverages. 

I talk to Tiffany Gehrke about two cases. One is Vidal v. Elster, better known as the “TRUMP TOO SMALL” case. Just decided by the Supreme Court, this deals with whether a mark containing criticism of a government official or public figure – which is barred by the “names clause” of the Lanham Act – violates free speech. Justice Thomas wrote the majority opinion, which Tiffany outlines. 

The other case is Penn State v. Vintage Brands, which is pending in Pennsylvania federal court and is expected to have wide-reaching implications for retailers and brand owners alike. Vintage Brand uses Penn State’s registered Nittany Lions trademarks on t-shirts, hats, and other goods, and argues that use of the trademarks constitute a defensible “ornamental use.” We shall see!

Finally, I ask Kelley Gordon for her take on a dispute between a popular Instagram influencer, Lauren Holifield, and champagne brand Veuve Clicquot. Holifield temporarily and surprisingly lost her IG account after Veuve Clicquot raised trademark infringement concerns on three of Holifield's videos. This was a big deal for her. She was earning six figures. OMG. Hear what Kelley has to say.

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This podcast is the audio companion to the Journal of Emerging Issues in Litigation. The Journal is a collaborative project between HB Litigation Conferences and the vLex Fastcase legal research family, which includes Full Court Press, Law Street Media, and Docket Alarm.

If you have comments, ideas, or wish to participate, please drop me a note at [email protected].

Tom Hagy
Litigation Enthusiast and
Host of the Emerging Litigation Podcast
Home Page
Follow us on LinkedIn
Subscribe on your favorite platform. 

Everyone knows that price fixing is against the law, chiefly Section 1 of the Sherman Act.

Competitors may not collude, i.e., agree, to keep prices where they want them, but there are relatively new pricing platforms that some companies maintain take them out of the equation, so they do not have to share private information directly with competitors. Instead, they claim, they feed their data to a third-party which uses algorithms to come up with pricing for these competitors based on data they all contribute. The subject has been getting a lot of attention as cases mount against a company called RealPage, a firm that provides shared pricing services for landlords. The company faces dozens of suits in multidistrict litigation and has also captured the attention of federal antitrust law enforcers. But they are not the only company finding themselves in litigation. 

As our guest recently wrote: “When pricing algorithms are used by individual firms, such as airlines, e-commerce platforms, ride-share and room-share companies, stock traders, and others, there are unlikely to be anti-competitive consequences. It is when market competitors avail themselves of the same algorithmic program or service that the specter of unlawful collusion arises.” That risk increases as markets become more concentrated, he says. 

He is Jonathan Rubin, Partner and Co-Founder of MoginRubin LLP, a widely recognized competition law attorney, economist, and commentator who has presented at antitrust conferences in the United States and Europe, testified before several congressional committees, and before the Directorate General for Competition of the European Commission.  

“The fact that these services employ an algorithm is not central to what's going on in this scenario,” he told me, “because what's important is the conduct of the businesspeople involved.”

Listen to my interview with Jonathan Rubin as we discuss what algorithmic or software-facilitated pricing is, what the law says about price collusion, how this new pricing mechanism violates that law, and recent developments in litigation.

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This podcast is the audio companion to the Journal of Emerging Issues in Litigation. The Journal is a collaborative project between HB Litigation Conferences and the vLex Fastcase legal research family, which includes Full Court Press, Law Street Media, and Docket Alarm.

If you have comments, ideas, or wish to participate, please drop me a note at [email protected].

Tom Hagy
Litigation Enthusiast and
Host of the Emerging Litigation Podcast
Home Page
Follow us on LinkedIn
Subscribe on your favorite platform. 

Companies are grappling with how to market the eco-friendly, people friendly, and animal friendly characteristics of their products and services, while also not getting in trouble with the law. Some have learned this the hard way. Some have wisely consulted experts. (That's foreshadowing.)

ESG – or Environmental, Social and Governance – reporting and so-called greenwashing litigation have implications for a wide range of stakeholders. Companies face significant financial and reputational risks, while investors, regulators, advocacy groups, and consumers all have an interest in ensuring the accuracy and transparency of ESG information.

Last year the SEC adopted amendments to the Investment Company Act with the “Names Rule,” which addresses fund names that are likely to mislead investors about a fund’s investments and risks. 

On the consumer side, the FTC has been on the case as it stalks misleading advertising claims. Violations have real consequences. In 2022 the FTC reached multimillion dollar settlements with store chains Kohl’s and Walmart over claims that certain products were eco-friendly and made from bamboo, when they were really made from rayon. 

More recently, a class action was filed in federal court in New York over the "carbon neutral" branding on bottled water. But there are some important court decisions our guest wants to know about, involving shoemaker AllBirds and beauty products company Sephora. 

She is Ramya Ravishankar, General Counsel & Corporate Secretary of the HowGood company, an independent research firm that helps the world’s largest food brands meet their sustainability commitments. Ramya is a former environmental biologist turned attorney who is – as you will soon hear -- passionate about the intersection of food and sustainability. Previously, Ramya was Associate General Counsel at Bowery Farming – producer of pesticide free lettuce, other leafy foods and herbs. Before that she was a regulatory enforcement associate at Skadden Arps. Ramya earned her J.D. from Columbia Law School in New York and a B.S. from Queen’s University in Ontario, Canada.

Enjoy the interview!

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This podcast is the audio companion to the Journal of Emerging Issues in Litigation. The Journal is a collaborative project between HB Litigation Conferences and the vLex Fastcase legal research family, which includes Full Court Press, Law Street Media, and Docket Alarm.

If you have comments, ideas, or wish to participate, please drop me a note at [email protected].

Tom Hagy
Litigation Enthusiast and
Host of the Emerging Litigation Podcast
Home Page
Follow us on LinkedIn
Subscribe on your favorite platform. 

In this episode we talk about litigation automation, and another case in which innovators are using artificial intelligence to transform legal operations.

We also speak with our guest about his transformation from a litigator to a tech entrepreneur, and how the company he co-founded is using modern tools to do in minutes what used to take hours. These tasks include responding to demand letters, complaints, and discovery requests, and executing matter profiling and data analytics, all of which are traditionally rote and repetitive and time-consuming undertakings.

He is James M. Lee, co-founder and CEO of LegalMation. James conceived the idea behind LegalMation -- which is to leverage the power of generative artificial intelligence to transform litigation and dispute resolution -- while managing a litigation boutique.  An experienced and recognized litigator and trial attorney, James received his J.D. from Stanford Law School. 

Also joining me, I’m pleased to say, is the ever-inquisitive and always attentive Sara Lord, legal analytics professional extraordinaire, who raised questions from the litigator's perspective. 

I hope you enjoy the conversation!

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This podcast is the audio companion to the Journal of Emerging Issues in Litigation. The Journal is a collaborative project between HB Litigation Conferences and the vLex Fastcase legal research family, which includes Full Court Press, Law Street Media, and Docket Alarm.

If you have comments, ideas, or wish to participate, please drop me a note at [email protected].

Tom Hagy
Litigation Enthusiast and
Host of the Emerging Litigation Podcast
Home Page
Follow us on LinkedIn
Subscribe on your favorite platform. 

Biometric data is big business. It many cases it even helps make our lives better.  It also presents  significant risks for a variety of parties, in addition to those of us who surrender our data. Companies collecting,  storing, utilizing, and monetizing the data face penalties and litigation bolstered by the increasing number of states enacting biometric information privacy acts, or BIPAs, the first of which was in Illinois.

Biometric information --  fingerprints, facial and retinal scans, and DNA -- it's all used in many ways we don’t even think about, like building security, banking access and online payments, smartphone access, patient identification in healthcare, employee tracking, law enforcement, air travel security and hotel check-ins, consumer tracking and customer experience analysis, border security, validating recipients of government welfare benefits, identifying students taking exams, and more. 

I just finished hosting a webinar titled “Litigation After Biometric Privacy Law Violations” with attorneys John M. Leonard and Cort T. Malone of Anderson Kill. They spoke extensively about the state of biometric privacy litigation, the regulatory landscape,  insurance coverage considerations, and recent rulings. They're both shareholders at Anderson Kill and they are both graduates of the Fordham University School of Law.

John M. Leonard is co-chair of the firm's biometric liability group. He has recovered millions of dollars for policyholders in a full spectrum of insurance coverage matters, including disputes over business interruption, D&O and E&O, defense and indemnity, general liability losses, and environmental liability.

Cort T. Malone, chair of the firm's Biometric Liability Insurance Recovery Group, is an experienced litigator who focuses on insurance coverage litigation and dispute resolution, with an emphasis on commercial general liability insurance, cyber insurance, employment practices insurance, advertising injury, D&O, E&O, and property insurance. He's also a member of the firm's practice groups relating to restaurant, retail and hospitality; environmental law; cyber insurance recovery; and COVID litigation. 

Following the webinar (coming soon to the West LegalEdcenter), Cort and John stuck around to answer some of my questions about a couple of recent cases I thought illustrated the types of underlying and coverage matters we’re seeing out there.

I hope you enjoy it.

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This podcast is the audio companion to the Journal of Emerging Issues in Litigation. The Journal is a collaborative project between HB Litigation Conferences and the vLex Fastcase legal research family, which includes Full Court Press, Law Street Media, and Docket Alarm.

If you have comments, ideas, or wish to participate, please drop me a note at [email protected].

Tom Hagy
Litigation Enthusiast and
Host of the Emerging Litigation Podcast
Home Page
Follow us on LinkedIn
Subscribe on your favorite platform. 

This episode is dedicated to Mental Health Awareness Month -- May 2024 -- in which we explore some of the keys to achieving wellbeing as a human litigator.

Lawyers contemplate suicide at "an exceedingly high rate." Whereas 4.2% of adults have reported contemplating suicide, that figure is 10-12% among lawyers. According to a study published by MDPI, lawyers are prone to mental health issues, including anxiety, depression, and substance abuse. "[O]ur findings suggest the profile of a lawyer with the highest risk for suicide is a lonely or socially isolated male with a high level of unmanageable stress, who is overly committed to their work, and may have a history of mental health problems."  Released in 2023, the authors of the study -- Stressed, Lonely, and Overcommitted: Predictors of Lawyer Suicide Risk (Krill, Thomas, Kramer, Degeneffe, and Anker) -- say there is a need for interventions to address these risks,  including  "education, resources, and support for lawyers to better manage their workload, modifying work demands and expectations, and promoting a culture of openness and support within law firms."

With that as a backdrop, guest host and legal analytics professional Sara Lord interviews success coach and former litigator Gary Miles about the professional dissatisfaction litigators experience  when the pursuit of fulfillment clashes with high-stress demands -- from burnout to depression to imposter syndrome. Explore practical strategies for managing anxiety and embracing mindfulness, like reframing your thoughts, celebrating even small achievements, identifying trusted colleagues and mentors, the importance of rest, and reaching out for help. Learn some of the wisdom Gary imparts via his counseling services.

Feeling emotionally crisp?  “There is always a solution. Always,” Gary says.

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Need Immediate Help? If you are in the U.S. and experiencing thoughts of suicide, call or text the 988 Suicide and Crisis Lifeline at 988 or IMAlive at 1-800-784-2433. In the UK and Ireland – Call Samaritans UK at 116 123; in Australia – Call Lifeline Australia at 13 11 14; in other countries – Visit IASP or Suicide.org to find a helpline in your country.

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This podcast is the audio companion to the Journal of Emerging Issues in Litigation. The Journal is a collaborative project between HB Litigation Conferences and the vLex Fastcase legal research family, which includes Full Court Press, Law Street Media, and Docket Alarm.

If you have comments, ideas, or wish to participate, please drop me a note at [email protected].

Tom Hagy
Litigation Enthusiast and
Host of the Emerging Litigation Podcast
Home Page

The art and science of forecasting litigation outcomes just got a lot more sciencey.

Years of immersion in complex business disputes is bound to shine a light on problems begging for solutions. In this case, our guest observed the laborious and ineffective slog that is trying to forecast how long a case will take, how much it might cost, which jurisdiction will treat it with kindness, or how a judge might rule on a motion for summary judgment.

These are some of the critical questions our guest set out to address through the use of technology and assessment of massive data sets. He is Dan Rabinowitz, Co-Founder and CEO of  Pre/Dicta, a six-year-old company that provides litigation prediction and forecasting services.  Before Pre/Dicta, Dan was an attorney in Sidley Austin LLP’s Supreme Court and Appellate Group and the firm’s Mass Tort Litigation Group. Later, he served as trial attorney in the U.S. Department of Justice, general counsel to a data science company, and associate general counsel, chief privacy officer, and  director of fraud analytics for WellPoint Military Care.

Listen to what Dan has to say about how the power of technology is going to make predicting litigation as commonplace as predicting the weather. He also shares insights into a study Pre/Dicta conducted that tested assumptions about judges based on their political affiliations. 

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This podcast is the audio companion to the Journal of Emerging Issues in Litigation. The Journal is a collaborative project between HB Litigation Conferences and the vLex Fastcase legal research family, which includes Full Court Press, Law Street Media, and Docket Alarm.

If you have comments, ideas, or wish to participate, please drop me a note at [email protected].

Tom Hagy
Litigation Enthusiast and
Host of the Emerging Litigation Podcast
Home Page