Author Archives: Joseph Oliva

Debt Collectors Earn Win on FDCPA Claim for Stale Debt

Debt collectors recently won an important victory in the U.S. Supreme Court, which ruled that filing a stale claim in bankruptcy court does not run afoul of the Fair Debt Collection Practices Act (the “FDCPA”). Although the Opinion does not affect a debtor’s potential claim for sanctions under frivolous filing rules, it does remove at least one potential avenue for recovery.

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Unethical ≠ Negligent

It’s not uncommon to see allegations of ethical breaches incorporated into malpractice claims. Former clients may argue that their attorney’s failure to comply with the rules of professional conduct evidences negligence. Often, however, that’s insufficient to sustain a claim. An ethical breach may be considered by the fact-finder but, without more, is unlikely to support a claim. Consider the recent decision from the New York State Appellate Division which continued a trend of dismissing legal malpractice claims based purely on ethical violations.

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Auditor Securities Fraud: Negligence isn’t Enough

Unlike most malpractice scenarios, alleged negligence is not enough to sustain a claim in the context of securities fraud against an independent auditor. Rather, in most jurisdictions the plaintiff must establish that the audit was of such little value that it was a “pretend” audit which provided no benefit. Alleging that the auditor could have done more is insufficient absent properly pled allegations that the auditor maintained an evil intent or acted with reckless conduct. This standard is fairly well-developed. Yet, the exposure is often considerable and “victims” of alleged fraud committed by public companies continue to target the independent auditors engaged to audit those companies. A recent decision out of the SDNY highlights another victory for the defense community in securities fraud cases targeting an auditor.

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Failure to Cite Blog Content Leads to Copyright Claim

Professionals utilize blogs for a variety of reasons: for marketing and promotion, to highlight trends and relevant issues, or to be of service to the community. In many cases, professional blogs do not generate original content, but rather provide summaries and links to primary sources, which readers can further investigate. However, professionals, like all bloggers, must be careful to identify their sources and avoid simply copying content from other sites. Failure to give credit where credit is due, even in blog posts, can violate ethics rules and lead to costly plagiarism claims.

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Decision Limits Defenses to FLSA Overtime Claims

You've heard it before, here and likely elsewhere, of the risks of FLSA overtime lawsuits. Yet, these suits continue to make headlines. Simply put, qualified employers must pay employees at least 1.5 times their regular wage for every hour worked in excess of 40 hours per week. This applies to certain professionals who, of course, employee non-exempts personnel. Whether it's tax season, preparing for trial or meeting a tight deadline, professionals may ask employees to work beyond 40 hours and therefore may be subject to FLSA's requirements. But what if the employee is also to blame? In certain jurisdictions, employers defending FLSA suits have claimed that it was the employee who is responsible for violating the FLSA and therefore the employer is off the hook. A recent decision suggests that this defense may no longer be viable.

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Experts are Like Produce: Buy Local

A key issue in most professional malpractice cases is whether the professional complied with the applicable standard of care. Given that this standard is defined by individual professional communities, an expert is almost always needed to assist the fact-finder. Not just any expert will do. Rather, an ideal expert must be in a position to opine whether the questionable conduct complied with the standard upheld in the defendant’s jurisdiction. This issue was recently raised in Delaware when an expert’s opinion was ignored because he lacked an understanding of the locale at issue.

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The Litigation Privilege: Who, What, When and Where?

Anything you say can and will be used against you. Well, not always. Attorneys, litigants, and experts may be immune from liability arising from certain acts and statements made in connection with the pursuit of litigation in light of the litigation privilege. This privilege can provide an important and useful defense for professionals. But what is it and when may it be asserted? Read on to find out.

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Love Triangles and Liability: Walgreens hit with $1.4 Million Verdict

Walgreens pharmacy was recently hit with a $1.4 million verdict for divulging sensitive patron information. The suit arises from one of the more peculiar set of facts you'll encounter but the takeaway is important to all. Pharmacy chains have increasingly become the targets of lawsuits mostly stemming from the improper administration of prescriptions or the failure to give appropriate warnings. But some recent suits involve a dilemma that all professionals face in this digital age: the failure to adequately protect sensitive and confidential data.

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Serious Sanctions Imposed for Deleting a Facebook Account

A New Jersey federal judge recently ruled that a plaintiff's deletion of his Facebook account amounted to the sanctionable destruction of evidence. This decision has major implications on social media discovery in all litigation. Some experts believe that this result proves that “social media access is fair game in litigation and that workers who try to conceal their online lives will pay a high price.”

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