Author: Bailey Glasser

PRC Designated Recipient of $560,000 Cy Pres Award

The Pension Rights Center, a nonprofit consumer organization dedicated to protecting and promoting retirement security, was designated the recipient of a $560,000 cy pres award by Bailey & Glasser, LLP.

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The Pension Rights Center, a nonprofit consumer organization dedicated to protecting and promoting retirement security, was designated the recipient of a $560,000 cy pres award by Bailey & Glasser, LLP.

A cy pres award allows for the distribution of leftover funds from the settlement of a lawsuit to be disbursed to charitable organizations whose mission generally aligns with the purpose of the lawsuit. BG partner Gregory Porter commented that we are “delighted that undisbursed money is going to the Pension Rights Center, which has been working for 47 years to protect retirement security for workers and retirees, particularly for lower and moderate wage earners.” To learn more visit The Pension Rights Center website.

Honoring Black History Month

Every February, Bailey Glasser honors Black History Month. As part of our commemoration, we post all month long across our social media channels a selection of Black Americans who made impactful contributions in all the states where our law firm have offices. Please enjoy this short video that highlight’s this year’s social media posts for this important month.

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Every February, Bailey Glasser honors Black History Month. As part of our commemoration, we post all month long across our social media channels a selection of Black Americans who made impactful contributions in all the states where our law firm have offices. Please enjoy this short video that highlight’s this year’s social media posts for this important month.

As noted at the end of this video: ”Won’t it be wonderful when Black history and Native American history and Jewish history and all of U.S. history is taught from one book. Just U.S. history.” Maya Angelou

Mike Murphy Quoted in the National Law Journal About Facebook Effort “To Squeeze Every Penny Out Of Every Eyeball”

Bailey & Glasser, LLP partner Michael Murphy was quoted in the National Law Journal about his work in helping lead the new wave of litigation related to privacy law concerns, particularly related to how Facebook identifies users and tracks them across the Internet with a user ID number, and how this intersects with the Video Privacy Protection Act. As stated in the article titled: “Privacy Law Sparks New Litigation Wave Over Undisclosed Data Sharing”:

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Bailey & Glasser, LLP partner Michael Murphy was quoted in the National Law Journal about his work in helping lead the new wave of litigation related to privacy law concerns, particularly related to how Facebook identifies users and tracks them across the Internet with a user ID number, and how this intersects with the Video Privacy Protection Act. As stated in the article titled: “Privacy Law Sparks New Litigation Wave Over Undisclosed Data Sharing”: “Murphy has a warning: ‘If you’re going to bind the consumer, at least give them a fair disclosure and not pretend these tracking tools are used to ‘enhance’ the user’s experience instead of an effort to squeeze every penny out of every eyeball.’”

To read the full article visit here.

Partner Mark Boyko Quoted in Law 360

“Make no mistake, the decision is a win for workers and retirees” – BG partner Mark Boyko is quoted in Law360 commenting on the impact of a federal court appeal rejecting a management-side argument to force an ERISA lawsuit into individual arbitration, finding that an agreement tucked into ESOP plan documents blocked relief under federal benefits law.

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“Make no mistake, the decision is a win for workers and retirees” – BG partner Mark Boyko is quoted in Law360 commenting on the impact of a federal court appeal rejecting a management-side argument to force an ERISA lawsuit into individual arbitration, finding that an agreement tucked into ESOP plan documents blocked relief under federal benefits law. However, the panel avoided thornier questions such as whether all ERISA claims could be pushed into arbitration. As Boyko noted, the panel “hung its hat” on the arbitration provision’s block on monetary or other relief being recovered on a class basis and warns “the issues with limiting representative actions are just one of the problems.’”

To the read the full article, visit here.

“Improvidently Granted”: Supremes Decline to Wade Into Attorney-Client Privilege Dispute

This past January 11, we wrote a blog post about the Supreme Court entertaining arguments on the scope of the attorney-client privilege in the context of dual-purpose communications paraphrasing a question from Justice Kagan during the argument to Petitioner’s counsel to comment on the adage, “If it ain’t broke, don’t fix it.”

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Katherine E. Charonko and Elizabeth L. Stryker

This past January 11, we wrote a blog post about the Supreme Court entertaining arguments on the scope of the attorney-client privilege in the context of dual-purpose communications paraphrasing a question from Justice Kagan during the argument to Petitioner’s counsel to comment on the adage, “If it ain’t broke, don’t fix it.”

Well, turns out the Supreme Court did not want to wade into that potential quagmire, and instead turned around and entirely dismissed the writ of certiorari granted in In re Grand Jury as “improvidently filed.” Accordingly, the Ninth Circuit’s opinion which had been appealed to the Supreme Court that had held the “primary purpose” test controls when assessing attorney-client privilege for dual-purpose communications remains in full effect. In re Grand Jury, 23 F.4th 1088 (9th Cir. 2021).This opinion is important reading for reasons other than the adoption of this test because the Ninth Circuit also discussed the disparate purposes of the attorney-client privilege and the work product protection doctrine and declined to adopt but did not fully reject the “a primary purpose” test.

 

In its opinion, the Ninth Circuit rejected the “because of” test that commonly applies in the work-product context for dual-purpose communications. In that context, work product protections apply when it can be fairly said that the “document was created because of anticipated litigation and would not have been created in substantially similar form but for the prospect of that litigation.” In re Grand Jury Subpoena (Mark Torf/Torf Env’t Mgmt.), 357 F.3d 900, 908 (9th Cir. 2004).The Court recognized, however, that the attorney-client privilege and the work product protection doctrine arise from different policy goals. The Court specifically noted that the work product doctrine is intended to ensure the fairness of the adversarial process by allowing litigators to creatively develop legal theories and strategies without having to disclose this process to opposing counsel. In contrast, the attorney-client privilege is not necessarily tied to an adversarial process and is instead intended as a safe haven for frank communication about any legal matter.Based on these differences, the Court declined to adopt the same “because of” test for both contexts.

 

Notably, the Ninth Circuit also left open the possibility that the “a primary purpose” test articulated in In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014) may apply to cases with facts other than the ones presented below. However, given the “messy in practice” determination of “the primary or predominant” purpose of a dual-purpose communication, the Court declined to adopt the Kellogg Court’s reasoning.

 

Due to the Supreme Court declining to address this issue further, state and federal courts must rely on the precedent developed in their respective jurisdictions along with analytical tools like in camera review to determine the scope of the attorney-client privilege for dual-purpose communications. Please reach out to either Kate Charonko or Elizabeth Stryker with any questions regarding privilege or other discovery issues you may have.