Speaking of Litigation Podcast

What General Counsel and Business Leaders Need to Know:

• Sale-of-Business Label Is Not Enough: Courts generally give sale-of-business covenants more leeway than employment non-competes, but state law varies, and the label alone does not decide enforceability. A buyer should be able to explain how the restriction's scope, duration, and geographic reach protect the business and goodwill it purchased.
• Where Courts Draw the Line: Recent Delaware and California cases show that courts are examining whether a restriction reaches beyond the business and goodwill the buyer actually purchased or functions more like a post-employment restraint on the seller.
• Litigators Belong at the Deal Table: Litigation counsel can help transactional attorneys spot overreach and anticipate the questions a judge will ask before a deal closes. Ideally, covenants should be discussed at the letter-of-intent stage, not the night before signing.

In this episode of Speaking of Litigation®, Epstein Becker Green attorneys James (Jim) P. Flynn, Maurice Wells, and Kaci Hohmann discuss how courts are scrutinizing restrictive covenants in merger and acquisition (M&A) transactions, and how litigation and transactional attorneys can work together to draft and enforce those covenants.

-

Visit our site for related resources and email contact information: https://www.ebglaw.com/split27.

Subscribe for email notifications: https://www.ebglaw.com/subscribe.

Visit https://www.speakingoflitigation.com/.

-

Epstein Becker Green is a national law firm focused on health care and life sciences; employment, labor, and workforce management; and litigation and business disputes. This video is for informational purposes only and does not constitute legal advice. Viewing this video does not create an attorney-client relationship. SPEAKING OF LITIGATION® is a registered trademark of Epstein Becker & Green, P.C. © Epstein Becker & Green, P.C. All Rights Reserved. Attorney Advertising.

What General Counsel and Business Leaders Need to Know:

• Protected Health Information (PHI) in Discovery: PHI must be produced under specific protective orders and in line with both federal and state requirements. Some behavioral health documents require a court order before production, even with a protective order in place.
• Settlements and Kickback Risk: Settlements with a regulated health care party can raise Anti-Kickback Statute and Stark Law concerns, and a payment to a referral-source physician can be questioned if it overpays the physician to keep referrals coming. Third-party evaluations of settlement value have been used to avoid later improper-payment allegations.
• Corporate Practice of Medicine: In most states, corporations and hospitals cannot direct how doctors practice. A damage model relying on relationships that violate these rules or other state-law structural issues can fail and create unintended consequences in public filings.

In this episode of Speaking of Litigation®, Epstein Becker Green attorneys Jonathan Brollier, Charles E. Weir, and Megan Thibert-Ind discuss regulatory and business issues unique to the health care industry that can affect how cases are litigated and resolved.

-

Visit our site for related resources and email contact information: https://www.ebglaw.com/split26.

Subscribe for email notifications: https://www.ebglaw.com/subscribe.

Visit https://www.speakingoflitigation.com/.

-

Epstein Becker Green is a national law firm focused on health care and life sciences; employment, labor, and workforce management; and litigation and business disputes. This video is for informational purposes only and does not constitute legal advice. Viewing this video does not create an attorney-client relationship. SPEAKING OF LITIGATION® is a registered trademark of Epstein Becker & Green, P.C. © Epstein Becker & Green, P.C. All Rights Reserved. Attorney Advertising.

What General Counsel and Business Leaders Need to Know:

• Open-Source AI Puts Privilege at Risk: Communications with open-source artificial intelligence (AI) platforms lack the attorney involvement and confidentiality that privilege requires. Courts are ordering the disclosure of both prompts and outputs when these elements aren't satisfied, as the exchanges are with non-attorney third parties rather than counsel.
• AI Creates a False Sense of Confidentiality: While AI interfaces may appear closed to the company's own system, information typed into open platforms is used to train the AI itself, creating a false sense of confidentiality. Unsupervised employee use is a big risk.
• Early Counsel Involvement Is Essential: Counsel should supervise and direct the use of AI tools, and closed or enterprise-level systems should be deployed instead of open platforms. In-house counsel's early involvement is vital to establishing privilege protection when disputes are reasonably foreseeable, since attempting to claim privilege after information is already created is ineffective.

In this episode of Speaking of Litigation®, Epstein Becker Green attorneys Gianna Costello, Daniel J. Dwyer, and Adam Paine analyze how courts are applying the traditional attorney-client privilege and work product doctrine to AI-generated materials and communications, and address the practical steps in-house counsel must take when employees are using AI in litigation-related work.

-

Visit our site for related resources and email contact information: https://www.ebglaw.com/split25.

Subscribe for email notifications: https://www.ebglaw.com/subscribe.

Visit https://www.speakingoflitigation.com/.

-

Epstein Becker Green is a national law firm focused on health care and life sciences; employment, labor, and workforce management; and litigation and business disputes. This video is for informational purposes only and does not constitute legal advice. Viewing this video does not create an attorney-client relationship. SPEAKING OF LITIGATION® is a registered trademark of Epstein Becker & Green, P.C. © Epstein Becker & Green, P.C. All Rights Reserved. Attorney Advertising.

What General Counsel and Business Leaders Need to Know

• One National Standard: The U.S. Department of Justice's (DOJ's) Corporate Enforcement and Voluntary Self-Disclosure Policy (CEP) creates a national policy for how the DOJ may award companies cooperation credit for the voluntary self-disclosure of corporate misconduct in the criminal context.
• A 120-Day Clock: The CEP gives a company 120 days to self-report after a whistleblower's internal complaint, signaling that the DOJ may treat anything past roughly four months as untimely—far less time than most internal investigations take to finish.
• Disclosure as a Business Decision: A company's decision to self-disclose misconduct is no longer just a legal judgment call but a business-critical risk decision that can have real financial and reputational consequences.

In this episode of Speaking of Litigation®, Epstein Becker Green attorneys Zachary S. Taylor, Melissa L. Jampol, and Elena M. Quattrone break down the DOJ's new CEP and what it means for how quickly companies must investigate, escalate, and decide whether to self-disclose potential misconduct.

-

Visit our site for related resources and email contact information: https://www.ebglaw.com/split24.

Subscribe for email notifications: https://www.ebglaw.com/subscribe.

Visit https://www.speakingoflitigation.com/.

-

Epstein Becker Green is a national law firm focused on health care and life sciences; employment, labor, and workforce management; and litigation and business disputes. This video is for informational purposes only and does not constitute legal advice. Viewing this video does not create an attorney-client relationship. SPEAKING OF LITIGATION® is a registered trademark of Epstein Becker & Green, P.C. © Epstein Becker & Green, P.C. All Rights Reserved. Attorney Advertising.

What General Counsel and Business Leaders Need to Know

• Early Action Is Everything: Whether you're owed money or need a supplier to survive, proactive conversations with legal and financial advisors dramatically expand your options before problems become crises.
• Know Your Toolkit: From security interests and guarantees to debtor-in-possession financing and critical vendor programs, knowing which tools apply and when depends entirely on whether a distressed party is pre-bankruptcy or already in a proceeding.
• Legal Strategy Can Only Take You So Far: Deciding whether to keep doing business, renegotiate terms, extend credit, or walk away entirely comes down to business judgment and open communication with your counterparty—no legal strategy can replace either.

In this episode of Speaking of Litigation, Epstein Becker Green attorneys Ryan Cochran, Wendy Marcari, and Bob Mendes discuss strategies healthy companies can implement when they find themselves doing business with a financially distressed or insolvent partner—whether that's a slow-paying customer, a critical supplier, or a struggling tenant.

-

Visit our site for related resources and email contact information: https://www.ebglaw.com/split23.

Subscribe for email notifications: https://www.ebglaw.com/subscribe.

Visit http://speakingoflitigation.com.

-

Epstein Becker Green is a national law firm that focuses its resources on health care, life sciences, and workforce management solutions, coupled with powerful litigation strategies. This video is for informational purposes only and does not constitute legal advice. Viewing this video does not create an attorney-client relationship. SPEAKING OF LITIGATION® is a registered trademark of Epstein Becker & Green, P.C. © Epstein Becker & Green, P.C. All Rights Reserved. Attorney Advertising.

Key Takeaways:

• State Attorneys General (AGs) Are Stepping Up: With reduced federal enforcement staffing, state AGs are expanding their budgets, hiring former federal prosecutors, and taking the lead in health care fraud investigations.
• Medicaid Takes Center Stage: As federal enforcement focuses on Medicare, state Medicaid Fraud Control Units are prioritizing Medicaid fraud, creating a shift in enforcement focus and risk profiles for health care companies.
• Proactive Compliance Is Critical: Companies must prioritize internal complaint management, monitor their external reputation, and engage experienced local counsel to navigate the complexities of state and federal enforcement.

In this episode of Speaking of Litigation, Epstein Becker Green attorneys Zachary Taylor, Sarah Hall, and Jeremy Avila discuss the implications for general counsel regarding the expansion of state-level health care enforcement and explore how companies can proactively manage risk in this evolving environment.

Visit our site for related resources and email contact information: https://www.ebglaw.com/split22.

Subscribe for email notifications: https://www.ebglaw.com/subscribe.

Visit http://speakingoflitigation.com.

-

Epstein Becker Green is a national law firm that focuses its resources on health care, life sciences, and workforce management solutions, coupled with powerful litigation strategies. This video is for informational purposes only and does not constitute legal advice. Viewing this video does not create an attorney-client relationship. SPEAKING OF LITIGATION® is a registered trademark of Epstein Becker & Green, P.C. © Epstein Becker & Green, P.C. All Rights Reserved. Attorney Advertising.

This Veterans Day, Speaking of Litigation brings you a special episode featuring Epstein Becker Green attorneys Stuart Gerson, Jack Fernandez, Ron Green, and Ken Kelly, who share their unique journeys from military service to impactful legal careers.

Hear their remarkable stories:

• Stuart's counterintelligence work in the Air Force during the Vietnam War
• Jack's high-stakes missions as a Navy fighter pilot, including video footage of a fiery landing on an aircraft carrier
• Ron's experiences litigating war crimes as a Judge Advocate General officer
• Ken's leadership in the Army Transportation Corps

Discover how their military experiences shaped their leadership, resilience, and approach to the practice of law. This episode also celebrates the service of the broader Epstein Becker Green community, including employees and their families.

-

Visit our site for related resources and email contact information: https://www.ebglaw.com/split21.

Subscribe for email notifications: https://www.ebglaw.com/subscribe.

Visit http://speakingoflitigation.com.

-

Epstein Becker Green is a national law firm that focuses its resources on health care, life sciences, and workforce management solutions, coupled with powerful litigation strategies.

This video is for informational purposes only and does not constitute legal advice. Viewing this video does not create an attorney-client relationship.

SPEAKING OF LITIGATION® is a registered trademark of Epstein Becker & Green, P.C.

© Epstein Becker & Green, P.C. All Rights Reserved. Attorney Advertising.

Courtroom dramas make for great entertainment, but how much of what we see on screen reflects the reality of litigation?

In this episode of Speaking of Litigation, we analyze iconic scenes from Succession, The Good Wife, Bridge of Spies, and more to uncover the truths—and myths—about the legal process.

From Screen to Strategy: Lessons for Litigants

• Filing a Complaint: Learn from A Civil Action how attorneys determine the legal claims to include, as well as how Rule 11 of the Federal Rules of Civil Procedure ensures that lawsuits are grounded in fact and law.
• Attorney-Client Privilege: Discover why confidentiality is critical from the moment you hire a lawyer, as seen in Bridge of Spies.
• Preserving Evidence: Understand the duty to preserve documents and the consequences of failing to do so, hilariously depicted in Succession.
• Settlement Strategies: Explore the art of negotiation and how settlements often resolve cases before trial, as dramatized in Erin Brockovich and A Civil Action.

Join Epstein Becker Green attorneys Sierra Hennessy, Aime Dempsey, and Adam Paine as they separate Hollywood fiction from legal reality, offering practical insights for anyone navigating the litigation process.

-

Visit our site for related resources and email contact information: https://www.ebglaw.com/split20

Subscribe for email notifications: https://www.ebglaw.com/subscribe.

Visit http://speakingoflitigation.com.

This podcast is presented by Epstein Becker & Green, P.C. All rights are reserved. This audio recording includes information about legal issues and legal developments. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances, and these materials are not a substitute for the advice of competent counsel. The content reflects the personal views and opinions of the participants. No attorney-client relationship has been created by this audio recording. This audio recording may be considered attorney advertising in some jurisdictions under the applicable law and ethical rules. The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

When a merger or acquisition closes, many executives assume the legal work is over. But as this episode of Speaking of Litigation reveals, signing on the dotted line may be just the beginning.

Avoid post-closing litigation with these issues in focus:

• Earnout Disputes: Learn how a buyer's actions can intentionally or unintentionally depress earnings, leading to legal battles over unpaid contingent payments.
• Indemnification Risks: Understand why a buyer's "safety net" can become a legal landmine for sellers, especially when ambiguous deal language is involved.
• Regulatory Surprises: Discover the unforeseen challenges that arise when government investigations begin after a deal closes, forcing buyers and sellers to confront liability for past conduct.

Epstein Becker Green attorneys Jim Flynn, Bob Travisano, and Daniella Lee discuss how to spot the red flags in a deal, the main legal triggers of post-merger disputes, and, most importantly, how to protect your business—whether you're the buyer or the seller.

-

Visit our site for related resources and email contact information: https://www.ebglaw.com/split19

Subscribe for email notifications: https://www.ebglaw.com/subscribe.

Visit http://speakingoflitigation.com.

This podcast is presented by Epstein Becker & Green, P.C. All rights are reserved. This audio recording includes information about legal issues and legal developments. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances, and these materials are not a substitute for the advice of competent counsel. The content reflects the personal views and opinions of the participants. No attorney-client relationship has been created by this audio recording. This audio recording may be considered attorney advertising in some jurisdictions under the applicable law and ethical rules. The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

Early decisions in high-stakes litigation can shape both the courtroom and public narratives, yet critical first-move strategies are underutilized.

Why It Matters

• Setting the Tone Early: Find out how pre-litigation discovery builds compelling, evidence-backed cases.

• Controlling the Narrative: Learn how preemptive filings can influence not only legal outcomes but also public opinion.

• Detailed Insights on Strategy: Gain valuable advice on making critical first moves that can define the trajectory of your case.

Don't miss Epstein Becker Green attorneys Sierra Hennessy, David Clark, and Alex Barnard as they explore the benefits, risks, and nuances of these advanced legal strategies. This episode of Speaking of Litigation is packed with actionable insights for general counsel and legal professionals navigating complex litigation and provides real-time examples from high-profile disputes, including Blake Lively's and Justin Baldoni's cases.

Visit our site for related resources and email contact information: https://www.ebglaw.com/split18

Subscribe for email notifications: https://www.ebglaw.com/subscribe.

Visit http://speakingoflitigation.com.

This podcast is presented by Epstein Becker & Green, P.C. All rights are reserved. This audio recording includes information about legal issues and legal developments. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances, and these materials are not a substitute for the advice of competent counsel. The content reflects the personal views and opinions of the participants. No attorney-client relationship has been created by this audio recording. This audio recording may be considered attorney advertising in some jurisdictions under the applicable law and ethical rules. The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.