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Confidentiality in the Digital Age
By: Mark E. Best, Esq.
It seems like every day there is a new story about hackers stealing and publishing confidential personal information. Even the largest, most tech-savvy telecommunications companies in the world have been proven vulnerable. It’s one thing to have your name and date of birth exposed; it’s quite another to have your corporation’s trade secrets and litigation-sensitive information fall into the wrong hands. Good thing your attorney is keeping it safe, right? After all, “a lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” La. State Bar Art. 16, RPC Rule 1.6(c). So what exactly are the “reasonable efforts” attorneys must make?
In the 1980s, reasonable efforts might have included placing paper documents in a folder marked “confidential” in a file cabinet in a locked office. With the advent of electronic documents in the 1990s, it was probably reasonable to “burn” CD-ROMs stored under lock and key, or to save client documents to individual computers protected by passwords. Nowadays, attorneys have 24/7 worldwide access to their clients’ confidential information—and hackers can invade those data streams from the privacy of their own homes. As technology advances, attorneys’ data protection efforts must keep pace.
The American Bar Association suggests a multi-factor test to determine whether an individual lawyer or firm is keeping up. Factors include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients.
As with all of our client services, Kuchler Polk Weiner, LLC has found that the best way to ensure compliance with our information protection obligations is to “Lead the Pack” and stay ahead of the curve. Rather than doing the bare minimum to pass muster under the ABA’s balancing test, we sought guidance from our Fortune 100 clients who are at the forefront of information security. Several of them employ the best practices recommended by the International Organization for Standardization (ISO) and others hold ISO/IEC 27001 information security certifications.
ISO/IEC 27001 is the best-known worldwide standard for an information security management system (ISMS). An ISMS is a systematic approach to managing sensitive company information so that it remains secure. It includes people, processes and IT systems by applying a risk management process. Our firm ISMS ensures that our client data is secure and always available to our staff. Our customized processes are regularly monitored to ensure all systems are working effectively, so modifications can be implemented to strengthen any weakness. An annual audit is performed by a certified ISO Auditor to measure and verify the effectiveness of our system.
Kuchler Polk Weiner, LLC is one of only a handful of law firms in the United States with an ISO/IEC 27001 Certification and, to our knowledge, the only one in Louisiana at this time. The certification process is time-consuming, expensive, and not required by law. So why did we do it? Our clients go to great lengths to protect their sensitive information. When they hand it over to us, we want to protect it at least as well, if not better, than they do.
 For complete ISO survey data, see http://isotc.iso.org/livelink/livelink?func=ll&objId=18808772&objAction=browse&viewType=1.
Louisiana’s Act 312 & Legacy Landowner Litigation
By: Sarah C. Thompson
A “legacy” lawsuit is instituted by a landowner who claims that oil and gas operations caused his property to become contaminated. These suits often name every operator who ever worked at the site as defendants, usually going back decades. Below is a snapshot graphic of legacy litigation in Louisiana:
Clarifying Minimum Contacts: Personal Jurisdiction over Corporations
By: Etheldreda C. Smith
In 2014, following the United States Supreme Court’s decisions in Daimler AG v. Bauman, we provided an update on the shift in policy away from the landmark International Shoe decision regarding states’ exercise of general personal jurisdiction over corporations. Notably, International Shoe’s “minimum contacts” test for general personal jurisdiction was murky and resulted in judicial expansion of personal jurisdiction as globalization evolved over the last seventy years. Since Daimler, the Court has continued its shift away from International Shoe in the general jurisdiction analysis and also taken aim at exercises of specific jurisdiction that could undermine Daimler. The cases discussed here illustrate the Supreme Court’s desire to realign the states’ exercise of personal jurisdiction over corporations with the constitutional guarantees of due process and the burden placed on the defendant.
The Daimler decision provided clarity to corporations regarding the jurisdictions in which they might be subject to suit under a general jurisdiction analysis. Following Daimler, corporations could be subject to suit only in jurisdictions in which their “affiliations with the State are so continuous and systematic as to render it essentially at home in the forum State.” Simply put, general personal jurisdiction over corporations can properly be exercised in their state of incorporation or where their principal place of business or corporate headquarters are located. In a footnote, the Supreme Court left open the possibility that in an “exceptional case” a defendant could be subject to general jurisdiction in another state, but did little to elaborate on what factors would create such an “exceptional case;” and subsequent cases have yet to find one.
Walden v. Fiore was decided that same year. In Walden, the Supreme Court provided further insight into personal jurisdiction—this time focusing on specific personal jurisdiction over foreign defendants. The Court underscored that the focus of the inquiry is “the relationship among the defendant, the forum, and the litigation” rather than the defendant’s relationship with persons who reside in the forum. Rather than focusing on the situs of the injury as was done in many prior decisions examining the existence of specific personal jurisdiction, Walden held that the defendant’s suit-related conduct must connect him to the forum state in a meaningful way. Injury might be relevant to that inquiry, but it would no longer be controlling.
Last year, the Supreme Court again granted certiorari for two cases presenting issues of personal jurisdiction: BNSF Railway Co. v. Tyrrell, et al. and Bristol-Myers Squibb Company v. Superior Court of California, et al.
In BNSF, railroad employees filed suit under the Federal Employers’ Liability Act, which makes railroads financially liable for job related injuries sustained by their employees. In two consolidated cases, the Montana Supreme Court held that Montana could properly exercise general personal jurisdiction over the railroad because it “did business” within the state under Section 65 of FELA and was “found within” the State under Montana Rule of Civil Procedure 4(b)(1). The Montana Supreme Court further stated that the due process limits articulated in the Daimler decision did not apply to FELA claims or railroad defendants. Writing for eight of the nine members of the Court and reversing the Montana Supreme Court’s holding, Justice Ginsburg explained that the constraints of Daimler apply to “all state-court assertions of general jurisdiction over nonresident defendants; the constraint does not vary with the type of claim asserted or business enterprise sued.”
Bristol-Myers Squibb and BNSF were argued the same day. There, the California Court of Appeal applied Daimler to determine that California lacked general personal jurisdiction over the Plavix manufacturer, but affirmed the lower court’s decision that it had specific jurisdiction over claims asserted by out-of-state plaintiffs by applying a “sliding scale” approach to specific jurisdiction. Bristol-Meyers Squibb involved claims by both non-resident and domestic plaintiffs, and specific jurisdiction over the non-residents’ claims were at issue. A divided California Supreme Court found that Bristol-Myers’ “extensive” contacts with California permitted the exercise of a modified version of specific personal jurisdiction over claims by the non-resident plaintiffs; and that the requisite connection between the forum state and the suit-related conduct was “relaxed” where the foreign defendant has wide ranging general contacts with the forum state unrelated to the underlying controversy. Specific jurisdiction attached to the non-residents’ claims, the court held, in part because the non-residents’ claims were similar in many ways to the California residents’ claims. Fairness and judicial economy permitted joinder of the residents’ claims (to which specific jurisdiction inarguably applied) and the non-residents’ claims (which had no direct nexus with California).
The Supreme Court reversed and remanded. Relying on Walden, the same eight justices as in BNSF rejected California’s exercise of specific personal jurisdiction over the non-residents’ claims because there was no nexus between their claims and California. All of the non-residents’ alleged harm in Bristol-Myers was suffered outside of the forum state. The fact that the California plaintiffs were prescribed, obtained, and ingested the drug in California and sustained the same injuries as the non-residents was insufficient to exercise specific jurisdiction over the non-residents’ claims. According to the Court, specific jurisdiction requires a connection between the forum and the specific claims at issue. The Court further explained that Bristol-Myers’ contractual relationship with a resident co-defendant for distribution of Plavix was insufficient, standing alone, to confer specific personal jurisdiction over the company.
Despite repeated references to the “settled” nature of the law, the Court explicitly left open the question of whether the Fifth Amendment imposes the same due process requirements on federal courts’ exercise of personal jurisdiction as the Fourteenth Amendment does on the states’. The implication being that these cases signal a marked shift in the jurisprudence dealing with personal jurisdiction over defendant corporations in state courts.
With these cases in mind, new state court matters should be evaluated with a close eye to determine whether the forum’s exercise of general or specific personal jurisdiction over your corporate client is proper.
 134 S.Ct. 746 (2014).
 International Shoe Co. v. Washington, 326 U.S. 310 (1945).
 134 S.Ct. 1115 (2014).
 Because the workers were not injured in the forum state, an evaluation of specific jurisdiction was not at issue in BNSF.
 Justice Sotomayor wrote a partial dissent. While she concurred with majority’s conclusion that the nature of the claim has no bearing on the personal jurisdictional analysis, she expressed her disapproval of “the path the Court struck in Daimler AG v. Bauman,” and urged for a return to the International Shoe standard.
 Justice Sotomayor again dissented.
 There were no allegations that the contractual relationship was related to the alleged harm in this case, therefore, the contractual relationship alone would not create specific personal jurisdiction over Bristol-Myers Squibb.
 Since Bristol-Meyers Squibb concerned the exercise of personal jurisdiction by a state court, the Court’s analysis focused on due process as applied to the states under the Fourteenth Amendment. In contrast, the Fifth Amendment provides due process restrictions on federal courts’ exercise of personal jurisdiction; and the Court expressly reserved for another day whether the Fifth Amendment analysis is different.
Kuchler Polk Weiner, LLC congratulates Freightliner on 75 years of innovation.
Janika Polk, Lee Ziffer and Deb Kuchler recently ran into Dale Earnhardt, Jr. at Hendrick Motorsports where Freightliner is prominent. We’re reminded of how important it is as outside counsel to learn the client’s business.
What’s important to each client?
What keeps a client awake at night?
How does the business run?
That’s why, on our own time and on our own nickel, we:
Visit the client’s operation;
Climb on and drive a tractor;
Pick up a power tool and disassemble a brake drum;
Swing on a personnel basket onto an oil rig;
Don a Tyvek suit, hard hat, goggles, ear protectors and steel-toed boots for an inspection of a chemical plant or refinery;
Dive into the science underlying a product liability case;
Learn the lingo of deepwater drilling;
Know how to get to the port side from starboard on a client’s vessel; and
Understand the sensitivities involved in the client’s environmental stewardship issues.
We are 100% in it with our clients. When they have skin in the game, so do we.
Cleaning Up the Clean Water Act
By: Kristyn L. Lambert
On July 27, 2017, the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (the Corps) proposed the first of two rules designed to replace the controversial 2015 “Clean Water Rule” (the 2015 Rule), which some argue broadened federal jurisdiction under the Clean Water Act (CWA). This regulation is particularly important because it determines which areas are subject to the Corps’ permitting authority under the CWA. This news comes after Louisiana state administrators asked the Trump administration to grant funding and ease the federal permitting requirements related to Louisiana’s coastal lands.
The Corps’ Clean Water Rule of 2015 purportedly sought to clarify the question of which wetlands fall under the jurisdiction of the CWA, and interpreted “waters of the United States” to include “all waters that require protection in order to restore and maintain the chemical, physical, or biological integrity of traditional navigable waters,” without requiring a continuous surface connection. After its adoption, critics of the 2015 Rule argued that this construction significantly expanded federal jurisdiction.
Pursuant to its terms, the CWA applies to “navigable” waters, defined by Section 1362(7) of the Act as “waters of the United States.” This definition caused confusion regarding which areas are subject to the CWA regulations. Wetlands have been particularly difficult to classify under the CWA because the boundaries between navigable waterbodies and adjacent wetlands are often unclear. Enforcing agencies and the courts have struggled to determine where the navigable waters – and the jurisdiction of the CWA – ends, and where terra firma land begins.
The Corps, responsible for enforcing certain of the CWA’s permitting requirements, interpreted “waters of the United States” expansively. This resulted in a number of legal challenges from multiple parties and states, including Louisiana.
For instance, in U.S. v. Riverside Bayview Homes, Inc., the United States Supreme Court upheld the Corps’ authority to interpret the CWA as applicable to wetlands adjacent to other covered water bodies, even though the Corps had historically construed the CWA to cover only waters navigable in fact.
In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, (SWANCC), the U.S. Supreme Court held that the Corps exceeded its authority under the CWA when it adopted a rule extending the definition of “navigable waters” to include intrastate waters used as habitat by migratory birds. That case did not involve wetlands specifically, but it discussed that the deciding factor in Riverside, supra, was the “significant nexus” between the wetlands and navigable waters at issue. While the opinion did not precisely address what constitutes a significant nexus, it did indicate that physical proximity and location are important considerations.
More recently in Rapanos v. United States, the Supreme Court agreed that the “significant nexus test” should be applied to determine which wetlands fall within the CWA’s jurisdiction, but failed to reach a majority holding regarding how the test is applied. According to the plurality opinion authored by late Justice Scalia, a significant nexus requires that the wetlands be adjacent to “a relatively permanent body of water connected to traditional interstate navigable waters; and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins.” According to the opinion, the scope of the definition of “waters of the United States” was determined by a wetland’s physical proximity to covered waters, “not ecological relationship thereto.” According to Justice Kennedy’s concurring opinion, the significant nexus is established if the wetlands “affect the chemical, physical, and biological integrity of other covered waters.” In Justice Kennedy’s view – if the wetlands have a substantial ecological impact on navigable waters, the significant nexus test is satisfied regardless of the wetlands’ physical proximity to the navigable waters.
In October 2015, the U. S. Court of Appeals for the Sixth Circuit stayed the Rule on the grounds that the 2015 Rule was “at odds with the Supreme Court’s ruling in Rapanos” and because the rulemaking process by which the 2015 Rule was adopted was “facially suspect.”
In February 2017, President Trump issued an Executive Order instructing the EPA and Corps to issue new regulations that reflect Judge Scalia’s majority opinion in Rapanos to narrow CWA jurisdiction and reduce the area subject to federal permitting. The rule proposed on July 27, 2017 essentially seeks to repeal the 2015 Rule and “re-codify” the prior regulations temporarily. This will essentially maintain the status quo, as the prior regulations have been applied since the Sixth Circuit enjoined the 2015 Rule. In a “second step,” the agencies intend to “conduct a substantive re-evaluation of the definition” to draft replacement regulations.
 Corps of Engineers’ regulatory definition of waters of the United States 33 C.F.R. § 328.3.
 Clean Water Rule: Definition of “Waters of the United States,” 80 FR 37054-01 (2015).
 33 U.S.C.A. § 1362(7) (2014).
 See U.S. v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985); and Rapanos v. United States, 547 U.S. 715 (2006).
 U.S. v. Riverside Bayview Homes, Inc., 474 U.S. 121, 123 (1985).
 Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001).
 Id. at 167.
 Id. at 168.
 Rapanos v. United States, 547 U.S. 715, 742 (2006)(internal quotations omitted).
 Id. at 747.
 Id. at 780.
 In Re E.P.A., 803 F.3d 804, 807 (6th Cir. 2015).
The Enemy of Efficiency: Diminishing Marginal Returns
By: Mark E. Best, Esq.
Clients want, expect, and are entitled to efficient handling of their cases. The block-billing model of the past, which allowed for full-day time entries on “research” or “document review,” gave way to standard tenth-of-an-hour billing increments with verbose time entries designed to help clients determine whether they were getting their money’s worth. And even this model is now showing its age, having to compete with fixed and alternative fee agreements designed to give more certainty to future litigation costs. No matter the billing method, when the client is writing out that check, she wants to know she isn’t paying for unnecessary work.
Most defense firms create efficiencies using common methods like new technology (e.g., paperless work flow; video conferencing; electronic document review software), appropriately tiered staffing (e.g., delegation of simple tasks to clerks, paralegals and secretaries), and assessment of cases for early resolution through motion practice or settlement. At Kuchler Polk Weiner, LLC, we take efficiency efforts one step further—out of the physical office and into our collective mindset. One way we do this is by focusing on the archenemy of efficiency—the law of diminishing marginal returns (“DMR”).
This economic principle states that if one input in the production of a commodity is increased while all other inputs are held fixed, a point will eventually be reached at which additions of the input yield progressively smaller, or diminishing, increases in output. Put more simply, you can continually add more of a given resource to creation of a product but, at some point, it will become inefficient to do so. The practice of law is not immune from the law of DMR. There comes a point in every project or case when spending additional hours working on it yields an ever-decreasing return for the client—potentially even a negative return, which occurs when additional work input results only in increased costs to the client, without any benefit whatsoever. So what does this look like in the real world?
In the first three hours an attorney spends constructing a brief, she may formulate an outline, read the latest case-on-point, and identify the key supporting exhibits. That work is very productive and highly valuable to the client. In the last hour of brief preparation, however, he may read and re-read the draft, ultimately deciding only to change the word “Firstly” to “First.” Some would (rightly) argue that the last hour was quality-control work necessary to ensure top quality. From an economic perspective, however, the last hour created “diminished” value for the client relative to the first three hours. And yet, the client is charged for the last hour at full price.
We cannot fight the law of diminishing marginal returns, but we can maintain a higher level of efficiency by being mindful of it. An efficient attorney should consider the following questions at each stage of work-product preparation:
- What is absolutely essential to this work product, and what is not?
- Have any essential parts of the work product already been created, such that I need not reinvent the wheel?
- Have I reached the point in the creative process where I am merely fine-tuning?
- Is the fine-tuning still creating good value for the client?
The goal of this mindfulness exercise is to create an automatic internal alarm system, pinpointing the moment when the return on investment of time begins to diminish. Once the alarm bells go off, there should be a shift in mindset to “wrapping things up” and moving on to other, more productive tasks. The benefit to the client’s bottom line does not go unnoticed and (bonus!) we tend to avoid those headaches that come from staring at the same words on the computer screen for hour after hour.
Louisiana Judicial Districts and Circuits Map
After growing tired of referencing bland maps of Louisiana’s judicial districts—none of which combined both federal and state courts—KPW Associate Joshua Dogget made his own. Feel free to download, print, and share.
Always be Closing, Even on Day One of a New Maritime Case
Nothing jump-starts a legal mind like a brand new case. As you read the Complaint for the first time, the former law student in you begins issue-spotting automatically and fires off a barrage of questions:
What’s the jurisdictional basis? Is it a vessel? Seaman or Longshoreman? Are punitive damages available?
Not to be outdone, the seasoned litigator in you adds to the growing pile:
When are responsive pleadings due? Who is opposing counsel? Who’s the judge? Didn’t we just handle a similar case?
Sometimes it seems hard to know where to begin. But the answer is pretty simple—begin at the end. There is nothing more valuable to defense clients than a quick win, and attorneys should strive to develop a reputation for ending litigation or delivering file closure before it’s expected. With rare exception, contractual indemnity is the fastest and least expensive way to get a new maritime file off of a client’s desk. Here are steps we strive to complete on Day 1 of a new maritime case.
Identify Plaintiff’s Employer
First, we want to identify our target—the contractor who is going to cover every dime of our client’s expense. Contracts for offshore work commonly require an employer to defend and indemnify those who are sued by its employees, so plaintiff’s employer is usually the first and best option. In Jones Act cases, the employer will always be a named defendant and the employment relationship will be clear from the allegations in the Complaint. In the event the employer is not identified in the Complaint, we pick up the phone and ask plaintiff’s counsel. Our client’s time is money, and it should not be wasted waiting for formal discovery on non-controversial matters.
Get the Contracts
Next, we get the signed documents. On the day a new file is assigned, we request copies of the relevant contracts and work orders between the client and plaintiff’s employer. Our efficiency-focused maritime clients understand our goals and provide these contracts with the new case assignment, before we even have to ask.
Master service agreements and vessel charters can be quite complex and the risk allocation, indemnity, and insurance provisions are thoroughly and carefully reviewed. We confirm that the contract language identifies the client as an indemnitee and that it contains specific language allowing the indemnitee to be indemnified for its own negligence. If our client did not contract with plaintiff’s employer, we request and examine its agreements with other named defendants in the suit. Oftentimes, contractual indemnity and defense obligations “pass through” other entities and provide coverage to our clients. By maintaining familiarity with our clients’ contract language, we can expedite the analysis.
Once we’ve confirmed that our client is owed defense and indemnity pursuant to the contract terms, we need to ensure that those terms are enforceable under applicable law. Our seasoned maritime attorneys are well-versed in choice-of-law analysis, state anti-indemnification statutes and, importantly, the exceptions thereto.
Follow Client/Contract Procedures
Assuming the contract terms are enforceable, we check the contract for dispute resolution and claim notification procedures. We strive to recommend next steps to our clients in every status report and, in this situation, those steps must conform to contract requirements.
Some agreements require notices to be sent to particular individuals or office addresses. Others allow the indemnitor to recover attorneys’ fees and costs if the indemnitee fails to employ alternative dispute resolution before filing a cross-claim or separate lawsuit for defense and indemnity. We avoid pitfalls by being accustomed to the terrain and our clients rest assured that we will take no action on this issue without specific authorization.
Finally, we consider our client’s internal procedures and preferences. Some companies’ legal departments require approval from their business units before a formal tender letter can be issued to a contractor. Some clients wish to issue tender letters directly, while others prefer to present them on our firm letterhead. Some clients prefer lengthy demand letters that attach the Complaint and all contract documents, along with a full legal analysis. Such letters project strength because they imply that formal legal action is a mere “cut-n-paste” away. Other clients see lengthy demand letters as giving away too much information, preferring instead simple demands merely attaching the Complaint and referencing a contract number. We seek out our clients’ individual preferences to deliver precisely what they want, when they want it.
Send the Demand
The best practice is to send copies of the demand letter by certified mail or other trackable means to (1) the entity’s registered agent for service of process; (2) the notification addressee identified in the contract; and, (3) the entity’s counsel of record in the underlying litigation (if applicable). This increases the likelihood of a prompt response, which can save our client time and money.
Our clients may not always remember opening a new case file with multi-million dollar exposure and a litigation budget of hundreds of thousands of dollars. We only want them to remember how Kuchler Polk Weiner, LLC closed it, at little or no cost to the company, in a matter of weeks.
 Indemnification for an indemnitee’s own negligence must be “clearly and unequivocally expressed.” An indemnification of “any and all claims” standing alone is not sufficient to indemnify the indemnitee for its own negligence. Seal Offshore, Inc. v. Am. Standard, Inc., 736 F.2d 1078, 1081 (5th Cir.1984) (citations omitted).
 The number of potential fact patterns, legal issues, pitfalls and outcomes of this analysis are too numerous to discuss in this space, and may be the subject of future posts.