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Office Info

  • 55 West Monroe Street Suite 3800 Chicago, IL 60603
  • p. 312.704.0550
  • f.  312.704.1522
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Publications

  • Insurance Policy Rescission Compendium: Montana

    DRI Insurance Policy Rescission Compendium

    January 15–16, 2019

  • Learned Intermediary Doctrine Protects Pharmacy from Liability for Failure to Warn of Prescription Drug Side Effects

    Pharmacy Failure to Warn of Prescription Drug Side Effects

    March 28, 2019

    The Illinois First District Appellate Court recently held that pursuant to the learned intermediary doctrine a pharmacy has no duty to warn customers of prescription drug side effects that may occur in “anyone” who takes the drug.

  • No Damages Required to Sue Under Illinois Biometric Information Privacy Act

    Illinois Biometric Information Privacy Act

    February 20, 2019

    The Illinois Supreme Court gave the state’s Biometric Information Privacy Act more “punch” in a recent opinion holding that an individual does not need to prove harm to recover − a technical violation of the Act is sufficient to constitute standing.

  • Formal Opinion 483: ABA’s New Breach Notification Obligations for Lawyers and Law Firms

    New Breach Notification Obligations for Lawyers and Law Firms

    October 30, 2018

    The idea behind the American Bar Association’s Formal Opinion 483 is to make sure that lawyers, despite their attempts to limit and prevent cyber threats, are still prepared to deal with a data breach when one occurs so clients can stay informed regarding their representation. The opinion closes by stressing that lawyers are still obligated to consult the relevant regulatory and statutory schemes in addition to the model rules to fully ensure they are properly keeping their clients informed in the event of a breach. 

  • Global Privacy Law Update

    July – August 2018

  • Strict Notification & Disclosure Requirements for Government Contractors

    Notification & Disclosure Requirements for Government Contractors

    August 30, 2018

    Businesses that seek to obtain and preserve contracts with the U.S. government, or to deal in certain enumerated defense articles and services, are subject to strict privacy regulations. These include the Defense Federal Acquisition Regulation Supplements, which impose stringent minimum security requirements and reporting obligations, and the International Traffic in Arms Regulations, which contain approval, registration and records maintenance requirements.

  • U.S. Companies Still Grappling with GDPR

    Implications of GDPR for U.S. Companies

    August 21, 2018

    The extra-territorial reach of the EU’s new General Data Protection Regulation means that non-EU companies that collect, store, transfer or otherwise process personal data of EU residents may be required to obtain express consent to use an individual’s personal data, in addition to maintaining internal records of the company’s personal data processing activities. Moreover, companies may have a mere 72 hours to notify EU regulatory authorities of a data breach involving the personal data of EU residents.

  • Uptick in Australian Data Breach Notifications

    Australian Data Breach Notifications Increase

    July 30, 2018

    Under Australia’s Notifiable Data Breach Scheme, organizations, not limited to Australian companies, will be forced to promptly respond to and investigate actual or suspected data breaches concerning personal information. Failure to do so may result in the commencement of a regulatory action and/or the imposition of civil penalties. Companies with potential exposure are encouraged to become familiar with the new legal requirements.

  • Canada’s New Data Breach Notification Law

    Canada’s Personal Information Protection and Electronic Documents Act

    July 23, 2018

    On November 1, 2018, the long-awaited amendments to Canada’s Personal Information Protection and Electronic Documents Act will go into effect. These amendments and related regulations impose new mandatory notification obligations on companies in the event of a breach involving the personal information of Canadians.

  • New Sweeping California Privacy Law

    New Sweeping California Privacy Law

    July 11, 2018

    While the California Consumer Privacy Act does not take effect until 2020, it is likely to spur other states – and perhaps the federal government – to enact broader legislative protections for the collection and use of individuals’ personal information. Meanwhile, all entities that do business in California and collect personal information of Californians should take prompt action to review and revise related assets and materials.

  • U.S. Supreme Court Delivers an Epic Decision for Employers

    U.S. Supreme Court Decision on Workplace Dispute Arbitration

    May 24, 2018

    Should employers be allowed to insist that workplace disputes be handled in one-on-one arbitration or should employees always have an option of bringing claims in collective actions? A 5−4 opinion for the U.S. Supreme Court holds that arbitration agreements containing class and collective action waivers must be enforced pursuant to the Federal Arbitration Act and are not otherwise nullified by the FAA’s savings clause or the National Labor Relations Act.

  • The Hub: Transportation News & Insights

    Quarterly Digest from Wilson Elser’s Transporation Practice

    March 2018

  • North Carolina Proposed Data Breach Legislation & Security Breach Report 2017

    NC: Proposed Data Breach Legislation

    January 30, 2018

    North Carolina’s proposed Act to Strengthen Identity Theft Practices (ASITP) attempts to combat the data breach epidemic by expanding North Carolina’s breach notification obligations, while reducing the time businesses have to comply with those obligations. If enacted, this new legislation will be one of the most aggressive U.S. breach notification statutes. 

  • Equifax and SEC Breaches Show You Can’t Hide from Hackers

    The Equifax and SEC Breach Impact

    September 28, 2017

    The speed of events and the fast-breaking news on the recent Equifax data breach discovered on July 29, 2017, has gone from bad to worse. An investigation revealed that the incident impacted 143 million consumers’ personally identifiable information, including names, social security numbers, dates of birth and driver’s license numbers.

  • The Hub: Transportation News & Insights

    Quarterly Digest from Wilson Elser’s Transporation Practice

    September 2017

  • Stopping Bad Actors: Defending Intellectual Property Rights Before the USITC

    DRI For the Defense

    August 1, 2017

  • Northern District of Illinois Upholds a Guardian Ad Litem’s Court-Approved Change of Beneficiary on Decedent’s Life Insurance Policies

    DRI: The Newsletter of the Life, Health and Disability Committee

    July 18, 2017

  • Is FAA Drone Licensure a Thing of the Past or Just in a Holding Pattern?

    FAA Drone Licensure

    June 6, 2017

    The DC Circuit Court of Appeals has upheld a challenge by a drone user who claims the Federal Aviation Administration’s drone Registration Rule ran afoul of a clear mandate found in the FAA Modernization and Reform Act of 2012. The issue hinges on the fact that drones are classified as model aircraft, when not being used commercially.

  • Illinois Appellate Court Opens Door to Expanding List of Accepted Diseases in Medical Marijuana Program

    Illinois Medical Marijuana Program

    May 25, 2017

    In a recent decision, the Illinois First District Appellate Court upheld reversal of the Illinois Department of Public Health’s refusal to add chronic postoperative pain to the list of accepted diseases in the Illinois medical marijuana program. The Court rejected the time limit for approval and required instead that the decision be remanded for further proceedings.

  • Weapons in the Cyber Defense Arsenal

    Global Cyberattack Readiness

    May 22, 2017

    The world recently experienced an unprecedented global cyberattack that targeted the public and private sectors, encrypting and locking electronic files. So far, it is estimated that hundreds of thousands of entities worldwide were victims of WannaCry ransomware; and just as WannaCry is subsiding, a new attack, Adylkuzz, is taking its place, crippling computers by diverting their processing power. Now the world needs to begin building a Cyber Defense Arsenal.

  • Federal Judges Are Tired of 'Stock' Discovery Objections

    Law360 | Expert Analysis

    May 3, 2017

  • Overcoming the Weakness in a Summary Judgment Decision on Appeal

    New York Law Journal

    April 10, 2017

  • Illinois Supreme Court Strikes Down Six-Person Civil Jury Statute as Unconstitutional

    Illinois Six-Person Civil Jury Unconstitutional

    September 26, 2016

    Public Act 98-1132, effective June 1, 2015, amended section 2-1105(b) of the Illinois Code of Civil Procedure (735 ILCS 5/2-1105(b)) by limiting the size of a jury in all civil cases to six people. In an action filed after the effective date, defendants filed their appearance and then moved for leave to file a 12-person jury demand and to declare the Act unconstitutional. The circuit court found the Act unconstitutional and the appeal proceeded to the Supreme Court, which immediately hears all appeals from circuit orders finding a state statute unconstitutional. 

  • Privacy Implications of the Federal Aviation Administration’s New Drone Rule

    Privacy Implications of FAA’s New Drone Rule

    September 16, 2016

    On August 29, 2016, the Federal Aviation Administration’s long-awaited commercial drone rule went into effect and is likely to spur significant innovation in commercial drone operation. While the new rule’s operational limitations work to confine drone use to small areas and limit the ability to misuse drones, they fail to fully protect individuals and their right to privacy.

  • Led Zeppelin Prevails in Copyright Infringement Case: Now on Appeal in Ninth Circuit

    Led Zeppelin: A Copyright Saga Continues

    September 7, 2016

    On June 23, 2016, following a trial, an eight-member panel jury unanimously found that the similarities between the opening chords in Led Zeppelin’s iconic song “Stairway to Heaven” and “Taurus,” an instrumental written by singer Randy Wolfe, a/k/a Randy California, of the group Spirit did not constitute copyright infringement. One month later, an appeal was filed to dispute the verdict and any interlocutory legal rulings and decisions made during the course of litigation.

  • The Minefield of Appellate Jurisdiction: Timely Filing the Notice of Appeal May Not Be as Simple as It Seems

    Illinois: Notice of Appeal Filed Late Is Null

    August 12, 2016

    In a recent case, the Appellate Court of Illinois, First Judicial District, acknowledged that a circuit court may have caused confusion when it issued a written order disposing of substantive claims and then, by separate order entered the same day, scheduled a future status hearing for an unspecified purpose. However, the appellate court determined that an obligation ultimately lies with the parties to track the circuit court’s disposition of the substantive issues raised in the pleadings, to act promptly in accordance with the rules to preserve arguments for appeal, and to seek clarification from the court when the effect of its orders is in doubt.

  • Employment Newsletter

    Chicago’s Paid Sick Leave Ordinance

    August 2016

  • Employment Newsletter

    Seventh Circuit on Class Action Waivers

    June 2016

  • Use of Criminal Background Checks in Fair Housing: HUD’s New Guidelines

    June 16, 2016

  • Federal Judges May Recall a Discharged Jury to Correct a Mistaken Verdict

    Federal Judge May Recall Jury to Correct a Verdict

    June 13, 2016

    The U.S. Supreme Court upheld a district court's ruling that a federal district court judge may recall a jury to correct a mistaken verdict after the jury has been discharged. However, “just because a district court has the inherent power to rescind a discharge order does not mean that it is appropriate to use that power in every case.”

  • The Hub: Transportation News & Insights

    Quarterly Digest from Wilson Elser’s Transporation Practice

    February 2016

  • Seventh Circuit Rules ERISA Does Not Preempt State Law Prohibiting Discretionary Clauses

    Bloomberg BNA Tax and Accounting Center

    November 12, 2015

  • Cloud Storage of Medical Records: HIPAA, HITECH and Other Compliance Issues”

    The Risk Management Quarterly

    October 2015

  • UPDATE: Is Safe Harbor Still Safe? The European Court of Justice Answers with a Resounding “No”

    UPDATE: Is Safe Harbor Still Safe?

    October 27, 2015

    A recent decision by the European Union Court of Justice will likely have tremendous consequences for the cross-border trade in data between U.S. companies and EU citizens. No longer will U.S. companies be able to rely on Safe Harbor program participation and self-certification as a layer of protection when handling the data of EU citizens.

  • Seventh Circuit Rules ERISA Does Not Preempt State Law Prohibiting Discretionary Clauses”

    FC&S Legal : The Insurance Coverage Law Information Center

    October 27, 2015

  • Update from Wilson Elser’s D&O Insurance Digest

    Update from Wilson Elser’s D&O Insurance Digest

    October 20, 2015

    Wilson Elser Chicago partner Anjali Das has compiled a roundup of recent news, including litigation and mega settlements, developments in Delaware D&O law, D&O cyber liability, and recent D&O insurance coverage decisions.

  • SEC Steps Up Cybersecurity Enforcement

    SEC Steps Up Cybersecurity Enforcement

    October 6, 2015

    In what appears to be an all-out assault on lax cybersecurity, the SEC has issued a new Alert in connection with its cybersecurity examination of Wall Street firms, entered a Cease and Desist Order against a firm for failing to adopt written policies or procedures to protect customer information, and issued an Investor Alert that highlights actions individuals should take if their personal information is compromised.

  • Illinois Passes Authorized Electronic Monitoring in Long-Term Care Facilities Act

    Electronic Monitoring in Long-Term Care Facilities

    September 1, 2015

    The Authorized Electronic Monitoring in Long-Term Care Facilities Act has become law in the state of Illinois. Effective January 1, 2016, residents of nursing homes, or family members, will be able to place recording devices in their rooms. It remains to be seen how the rules surrounding the new law will affect long-term care facilities.

  • Third Circuit Holds FTC Has Authority to Regulate Cybersecurity under Unfairness Prong of 15 U.S.C. § 45(a)

    3rd Circuit: FTC to Regulate Cybersecurity Practices

    September 1, 2015

    A recent Third Circuit ruling has put the burden on companies to not only consider the many laws, rules and regulations that impact data privacy and security but also attempt to anticipate regulators’ “state of mind” when creating and implementing cybersecurity programs.

  • Legal Holds in Response to Data Breaches

    DRI: In-House Defense Quarterly

    Summer 2015

  • Nevada, Washington and North Dakota Expand Data Breach Definition and Notice Requirements

    Three More States Expand Data Privacy Laws

    July 29, 2015

    As more states diverge in their approach to data privacy regulations, companies that store and transmit personal information find themselves responsible for an expanding field of what constitutes personal information and a shrinking list of acceptable responses.

  • U.S. Supreme Court Holds Defendant’s Belief a Patent Was Invalid Is Not a Defense to an Induced Infringement Claim

    Patents: Belief of Invalidity Never a Valid Defense

    July 28, 2015

    A recent U.S. Supreme Court decision demonstrates that businesses and people should always proceed with caution when inducing others to use, or contributing to the use of, patented or potentially patented subject matter. Failure to confirm invalidity, when there is knowledge of the patent and knowledge of infringement, subjects parties to additional risk, potential liability, and possible damages for induced infringement or contributory infringement.

  • Modernizing and Coordinating the Regulatory System of Biotechnology Products

    Regulatory System for Biotechnology Products

    July 23, 2015

    Substantial advances in biotechnology and accompanying additional regulation have led to uncertainty in agency jurisdiction and lack of predictability, creating unnecessary costs and inhibiting innovation. The Office of Science and Technology Policy aims to correct these problems with the process outlined in a July 2015 memorandum. 

  • Seventh Circuit Holds That Risk of Future Fraudulent Charge on Credit Card Sufficient to Withstand Motion to Dismiss

    When Breach Exposes Only Credit Card Payment Data

    July 22, 2015

    On July 20, 2015, the Seventh Circuit issued an opinion holding that risk of future fraudulent charges on a credit card and greater susceptibility to identity theft is sufficient to establish standing, reversing a decision by the Northern District of Illinois.

  • Eleventh Circuit Denies Coverage for Wrongful Acts of Directors and Officers That Arose Out of Their Wrongful Acts as Trustees, an Uninsured Capacity

    FC&S Legal: The Insurance Coverage Law Information Center

    July 21, 2015

  • Closing a Practice

    How to Prepare for Death, Disability and Retirement

    July 2015

  • Eleventh Circuit Denies Coverage for Wrongful Acts of Directors and Officers That Arose Out of Their Wrongful Acts as Trustees, an Uninsured Capacity

    11th Circuit Denies Coverage Based on "Capacity" Exclusion

    June 30, 2015

    In its preface to a recent unanimous decision, the Eleventh Circuit described the case as follows: “Mixing family and family-owned business can be complicated. When the mix produces litigation, complications can multiply. When the litigation involves misconduct allegedly committed by family members serving simultaneously as officers of the family business and as trustees of the family trust holding large amounts of the company’s stock, the complications abound. Add the question of insurance coverage for the litigation to the mix, and you have this case.”

  • Michael Jordan Defends His Right to Remain in Court to Protect His Likeness

    Michael Jordan Defends His Right to Remain in Court to Protect His Likeness

    June 11, 2015

    “Jewel-Osco salutes #23 on his many accomplishments as we honor a fellow Chicagoan who was just around the corner for so many years,” proclaimed an ad in a special Sports Illustrated Presents issue honoring Michael Jordan on his induction into the Basketball Hall of Fame in 2009. However, just below that was the sponsor’s slogan “Good things are just around the corner.” Facing a motion for summary judgment on standing, Michael Jordan prevailed, at least for now, with an Illinois Federal District Court holding that there are material issues of fact precluding a finding as a matter of law that Michael Jordan transferred his identity rights.

  • The PATENT Act in Its Infancy

    Protecting American Talent and Entrepreneurship Act of 2015

    May 27, 2015

    On May 7, 2015, the Senate Judiciary Committee and stakeholders discussed at length the provisions of the bipartisan Protecting American Talent and Entrepreneurship Act of 2015 and took into account certain comments. The so-called PATENT Act aims to curb abusive patent practices and litigation, although the debate in the Senate on whether the Act actually accomplishes this goal will continue.

  • Cybercrime on the Rise: Targeting Banking Institutions and Insurance Companies

    Update: State and National Cybersecurity Regulation

    May 26, 2015

    Financial and insurance institutions must make cybersecurity a top priority. While not every company has the resources to pour into cybersecurity, every company should take these risks seriously. As states continue to become more active in this space, companies should proactively seek to be at the forefront of cyber security developments.

  • Apple v. Samsung: Trade Dress Functionality and Total Profits without Apportionment

    Apple’s Partial Win in Patent Case with Samsung

    May 22, 2015

    In a May 18, 2015, opinion, the U.S. Court of Appeals for the Federal Circuit reaffirmed that Samsung had violated design patents in Apple's iPhone. However, that opinion did not extend to Apple's trade dress. This means that the $930 million award will be reduced, but, in the long run, neither side got all it wanted.

  • Medical Marijuana in HUD-Assisted Properties: Update Since HUD’s January 2011 Memorandum

    UPDATE: Medical Marijuana in HUD-Assisted Properties

    May 22, 2015

    Property managers must tread carefully on the topic of medical marijuana use in HUD-assisted properties; although HUD’s position that no exceptions would be made is clear, it is being increasingly criticized and challenged. Additionally, while property managers may be in the right by refusing to accommodate a medical marijuana user in terms of compliance with the FHA, the ADA or section 504 of the Rehabilitation Act, they may run afoul of states’ antidiscrimination laws.

  • NYDFS to Collect Data on Cyber Security, but Could Hackers Use This Database as a Road Map to Launch Targeted Attacks?

    NYDFS to Broaden Scope of Technology Examination Framework

    March 31, 2015

    As part of its increased focus on cyber security, the New York State Department of Financial Services announced that it is broadening the scope of questions and topics in its current information technology examination framework. The Department requires insurers to provide a response to 16 questions about their overall cyber security posture by April 27, 2015.

  • Good News for Companies: Pennsylvania District Court Rules That Plaintiffs Lack Standing without Actual or Imminent Misuse of Data

    Hack Away, but No Foul without Misuse of Info

    March 26, 2015

    Despite their best efforts, companies cannot prevent an industrious hacker from finding a way to access their data, but such incidents may not give rise to a cause of action. When a data breach occurs, an individual does not suffer harm, and thus does not have standing to sue, unless the individual alleges actual misuse of the information or that such misuse is imminent.

  • Michael Jordan Denied Summary Judgment on His Right of Publicity Claim against Illinois Grocer

    Michael Jordan ̶ Related Ad: Commercial versus Noncommercial Speech

    March 19, 2015

    A federal jury in Chicago will need to decide the merits of the legendary basketball player’s multimillion-dollar claim that Jewel Food Stores, Inc. violated the Illinois Right of Privacy Act when it used Jordan’s name and number “23” in an advertisement congratulating him on his induction into the Basketball Hall of Fame.

  • Court's Interpretation of Merchant Services Agreement Limits Retailer's Liability to Card Brands for Data Breach

    Third Parties Pay Excess Assessments in Security Breach

    March 12, 2015

    A recent decision by Missouri’s Eastern District Court puts businesses entering into contracts for payment processing services on notice to have such agreements reviewed by a data privacy and security attorney. The decision will likely cause processors and banks to focus more carefully on the limitation-of-liability provision related to credit card breaches.

  • Illinois Schools Face Tough Decisions in Combating Cyber-bullying

    Illinois Schools Face Tough Decisions in Combating Cyber-bullying

    March 9, 2015

    School officials are custodians of students, and states have adopted rules and regulations that give school officials even more power to protect students from bullying. States have added specific cyber-bullying language to their anti-bullying laws, codifying the notion that school officials have the discretion to act to protect students from bullying based on incidents outside of school. But are students’ passwords on social media websites fair game?

  • Balancing Employee Privacy with Protection of Company Assets

    New York Law Journal

    March 2, 2015

  • Illinois District Court Holds That a Plan Maintained by a Religiously Affiliated Organization Is Not a Church Plan

    Religiously Affiliated Organization Benefit Plans

    January 22, 2015

    In a December 31, 2014, decision, the U.S. District Court, Northern District of Illinois, on the question of whether a religiously affiliated employer was exempt from federal regulation of its employee benefit plans based on a statutory exemption created for churches under ERISA, excluded such benefit plans from the church plan exemption.

  • Chicago Federal Court Bars Expert Testimony Espousing the “Any Exposure” Theory

    “Any Exposure” Theory in Illinois Federal Court Asbestos Case

    January 12, 2015

    In a recent pre-trial ruling, the U.S. District Court for the Northern District of Illinois barred perennial plaintiff’s expert Dr. Arthur Frank and other experts for the plaintiff from providing opinions espousing the “Any Exposure” theory of causation.  Subject to this preclusion, however, the ruling leaves the door open for the plaintiff’s experts to provide case-specific causation opinions against defendants if such opinions are based on the experts’ analysis of the fact witnesses’ asbestos exposure testimony.  

  • Employment Newsletter

    What Employers REALLY Need to Know about Ebola

    January 2015

  • Illinois Appellate Court Finds Defendant Not Liable for “Speculative” Workplace Asbestos Exposure

    Liability for “Speculative” Workplace Asbestos Exposure

    December 30, 2014

    In a recent case before an Illinois Appellate Court, the plaintiff appealed the jury’s verdict for the defense, which denied her claim of asbestosis resulting from repair work or damage to insulation in her place of employment. In affirming the jury’s verdict, the Court made it clear there were many potential gaps in the plaintiff’s proof and that the jury could have easily concluded that her contacts with potentially harmful asbestos insulation were either so brief or in such small amounts that the threshold exposure discussed by the plaintiff’s expert had not been met.

  • Overview of HUD’s 2013 Guidance on Assistance Animals as Reasonable Accommodations under the Federal Fair Housing Statutes, and Post-guidance Developments

    Assistance Animals as Reasonable Accommodations

    December 18, 2014

    The “no pet” policy under the Fair Housing Amendments Act and section 504 of the Rehabilitation Act applicable to recipients of financial assistance from HUD may be subject to modification upon review of HUD’s April 2013 Guidance on “assistance animals.”

  • Data Security, Cyber Liability and First-party Costs for Mid Cap and Small Companies Are Reaching Catastrophic Levels

    Cyber Alert: Insurance Perspective on 2015 Cyber Warnings

    December 15, 2014

    The critical trend of data security breaches and cyber liabilities significantly harming mid cap and small businesses will continue to increase through 2015. Small companies need to recognize that they have as much, if not more, risk of suffering losses and attacks with greater frequency and severity than their bigger competitors. In fact, smaller companies are at greater risk because they do not have the same depth of resources as their larger competitors. Brokers and insurers can assist these companies in preparing for, protecting against and surviving an eventual and potentially catastrophic cyber crisis event.

  • Court Rejects Fiduciary Duty Breach by Claims Administrator Acting on Behalf of Plan Sponsor

    Court Rejects Fiduciary Duty Breach by Claims Administrator Acting on Behalf of Plan Sponsor

    December 12, 2014

    In a recent decision, a Michigan District Court determined that an act not typical of a claims administrator’s responsibilities performed at the instruction of the plan sponsor and administrator did not establish a fiduciary relationship with the plan’s participants and, as such, did not give rise to a claim for breach of fiduciary duty.

  • California Amends Law to Expand Businesses’ Obligations in the Wake of a Data Breach

    Amendment to California’s Privacy and Breach Law

    December 9, 2014


    On January 1, 2015, an amendment to California’s privacy and breach law goes into effect that may have a significant impact on the way entities respond to data breaches. In advance of the law’s effective date, in addition to evaluating their information security protocols and policies, entities that possess the personal information of California residents should review their insurance policies, first to make sure they have cyber insurance that provides data breach coverage, and second to determine if their policies will cover the potentially significant cost associated with notification and identity protection or mitigation services.

  • Doing Business with Health Care Organizations: What Health Care Insurers MUST Know About the New HIPAA Requirements

    DRI’s Life, Health and Disability Newsletter

    November 21, 2014

  • Cyber Voluntary Payment Defense Thwarted by Bank Fraud Regulation

    Coverage Issues Raised By Cyber Crisis Events

    October 9, 2014

    As companies, brokers and insurers continue to develop a better understanding of the risks and exposures involved with data breaches, standard insurance portfolios must be reviewed and developed to provide proper protection in the face of state laws and other outside influences.

  • Employment Newsletter

    EEOC’s Enforcement Guidance on Pregnancy Discrimination

    October 2014

  • A Guide to Cyber Coverage

    Insurance Coverage, Vol. 24, No. 4 | ABA Section of Litigation

    July-August 2014

  • California Appellate Court Limits Liability under California’s Medical Confidentiality Act for Disclosure of Medical Information

    Limit on Liability in Disclosure of Medical Information

    Septmber 22, 2014

    The California Third Appellate District  recently overturned a lower court’s denial of a motion to dismiss a class action lawsuit seeking $4 billion in damages under California’s Medical Confidentiality Act due to the alleged disclosure of medical records. The Appellate Court specifically held that the mere theft of medical records without any allegations that an unauthorized person viewed these records is insufficient to state a claim.

  • Where Suicide Is Caused by Intentional Infliction of Emotional Distress, Illinois Now Recognizes Ensuing Actions for Wrongful Death and Survival

    Intentional Infliction of Emotional Distress and Wrongful Death in Suicide Actions

    August 13, 2014

    Careful to draw the distinction between negligence and intentional torts in cases where a defendant’s actions cause emotional distress that leads to a suicide, the Illinois Appellate Court’s opinion in a recent case nevertheless opens the door to a wide variety of wrongful death and survival claims that were previously not recognized.

  • The Minefield of Appellate Practice: Notices of Appeal

    In Appellate Work, the Devil Is in the Detail

    August 11, 2014

    Because the filing of a notice of appeal is the jurisdictional step that initiates appellate review, it confers jurisdiction on a court of review to consider only the judgments or parts of judgments specified in it. Where a notice of appeal is filed improperly, the appellate court lacks jurisdiction over the matter and is obliged to dismiss the appeal.

  • Have You Upgraded Your XP Yet?

    Have You Upgraded Your XP Yet?

    July 15, 2014

    In April, Microsoft ended support for Windows XP Professional for embedded systems. As the saying goes, “a chain is only as strong as the weakest link” and even a single Windows XP computer could provide a potential intruder with a “window” into your network environment.

  • Seventh Circuit Opinion Demonstrates the Importance of Engaging an Appellate Attorney When the Right to Appeal Is on the Line

    The Case for the Appellate Practitioner

    June 9, 2014

    By filing a Rule 59(e) motion just one day late, a plaintiff unwittingly rendered a summary judgment order unreviewable and changed the standard of review in an unfavorable way. The lesson from a recent case before the Seventh Circuit is that engaging an appellate practitioner to handle post-trial and appellate litigation is a necessity, particularly where the right to appeal is at issue.

  • SEC Polices Cybersecurity on Wall Street

    SEC Polices Cybersecurity on Wall Street

    June 4, 2014

    The SEC’s new disclosure guidance was intended to bring greater awareness and transparency to actual or potential cybersecurity risk that might be considered material to investors. However, the SEC has acknowledged that this guidance alone might not be sufficient to address investor concerns.

  • Google and the Great Divide: U.S. Privacy Rights versus EU Privacy Rights

    Court of Justice: U.S. versus EU Privacy Rights

    June 2, 2014

    On May 13, 2014, the Court of Justice of the European Union found that an individual has the right to demand that Google remove links about him that he claimed were old and irrelevant. But which approach is best – the right to be forgotten or the right to know? The “right to be forgotten” as currently described by the Court of Justice could create a clash between freedom of speech, which is supported in the United States, and the EU’s broader concept of privacy.

  • Illinois District Court Rejects Strict Application of the “Bare Metal” Asbestos Defense

    Illinois Takes Middle Path in “Bare Metal” Defense Opinion

    March 13, 2014

    A recent decision by the U.S. District Court for the Northern District of Illinois in a case of first impression rejected strict application of the “bare metal” defense, under which defendants cannot be held liable for the dangers of asbestos-containing parts supplied by third parties. The court instead favored a middle path, holding that a defendant owes a duty to warn in certain circumstances.

  • Recent Case Advances Ninth Circuit Law on Pleading Diversity of Citizenship on Information and Belief

    Pleading Diversity of Citizenship on Information and Belief

    February 26, 2014

    “On information and belief,” which indicates a statement is made not from firsthand knowledge but in the firm belief that it is true, played a key role in a recent Ninth Circuit holding of first impression where the citizenship of parties to the case was unknown. The court agreed with Wilson Elser appellate attorneys, recognizing that the pleading of diversity of citizenship on information and belief is not sufficient to sustain federal jurisdiction throughout the life of a case, but reasoned that it is enough to allow the complaint to stand until it is served and a response is received; specifically, jurisdictional discovery is an appropriate solution because the insurer will likely be able to “obtain the information it needs via discovery from the defendants it can locate.”

  • ERISA: Insights and Case Discussions

    Lawyer Monthly

    January 2014

  • Illinois Appeals Court Rejects Application of Absolute Pollution Exclusion to Claim for Unpleasant Odors Emanating from Hog Farm Manure

    IL Appeals Court Rules on Absolute Pollution Exclusion

    December 24, 2013

    An intermediate Illinois appeals court rejected the applicability of the absolute pollution exclusion to a claim involving obnoxious odors emanating from hog farm manure, reasoning that the claim did not involve “traditional environmental pollution” as required by an Illinois precedent interpreting the exclusion.

  • Change in Illinois Code of Civil Procedure Results in Strict Payment Deadlines for Settling Defendants

    IL Legislature Sets Deadlines for Settlement Payments

    October 29, 2013

    Illinois defense counsel and their clients and carriers must keep in mind the provisions of a new statute, set to take effect on January 1, 2014, and the deadlines it imposes throughout the settlement process. They will need to seek court intervention in a timely fashion to avoid possible penalty for late payment.

  • Illinois Supreme Court’s New Ruling May Impact the Minimum Contacts Requirement in Establishing Specific Personal Jurisdiction

    Illinois: Personal Jurisdiction over Nonresident Manufacturer

    June 27, 2013

    The Illinois Supreme Court’s April 18, 2013 decision regarding the exercise of specific personal jurisdiction over a nonresident manufacturer may impact future products liability litigation. Under the court’s latest proclamation, more foreign defendants may find it difficult to extricate themselves from Illinois lawsuits through the Illinois Long-Arm Statute, even if they are not directly in contact with the plaintiff. 

  • Dialog between Regulators and Insurers Is Imperative in Response to Requests for Information Concerning Cybersecurity

    “308 Letters” Spur Vital Dialogue on Cybersecurity

    June 3, 2013

    Insurers responding to requests for information concerning cybersecurity from the New York Department of Financial Services may benefit from reviewing materials developed in 2002 in response to Regulation 173. In addition, insurers must implement a comprehensive written information security program and adjust it as changes in technology and other specified circumstances warrant.

  • Ill.'s Unclear Endorsement for Asbestos-Injury Losses

    Law360

    May 20, 2013

  • Data Breach and Privacy Update

    Spring 2013

  • Obesity as a Disability Under ADA

    Employee Relations Law Journal

    Spring 2013

  • Avoiding the Ostrich Problem: Dealing with Adverse Precedent

    For The Defense

    January 2013

  • Insurance Agency Risk Management: A Comprehensive Guide to Avoiding E&O Claims

    Security & Privacy Technology

    December 17, 2012

  • FINRA Dispute Resolution Opening to RIAs

    FINRA Dispute Resolution is now an alternative dispute resolution forum

    November 5, 2012

  • Sandy’s Perilous Aftermath

    Hurricane Sandy

    November 1, 2012

    As businesses and families that were caught in the path of Hurricane Sandy begin to survey the damage, insurers are feeling the first surge of many claims to come. Now’s the time to confer with Wilson Elser’s knowledgeable and adept insurance attorneys to be certain you’ve got all contingencies covered.

    This is the first in a series of alerts designed to provide you with clarity and understanding of the important and significant issues raised by this unprecedented crisis.

  • NY Appeals Court: Claims Disposed of by Motion Practice Not Concluded until Appeal from Judgment Is Decided

    Consequences for Trial Strategy Based on NY Court Ruling

    October 25, 2012

    An October 23, 2012, ruling by the New York Court of Appeals holding that claims disposed of by motion practice early in a case are not really concluded until an appeal from the final judgment is decided will have an effect on strategy for trial lawyers.

  • Foreign Corrupt Practices Act Gives Rise to D&O Claims

    Financial Fraud Law Report

    October 2012

  • Employment Newsletter

    Weight Bias in Employment

    September 2012

    Courts are responding to the broader scope of coverage afforded to individuals, including obese individuals, under the ADAAA.

  • Insider's Guide to the Illinois Appellate Courts

    The Appellate Practice Compendium

    August 2012

  • Wilson Elser Attorneys Co-author Professional Liability Chapter in the ABA Tort Trial and Insurance Practice Law Journal

    June 14, 2012

    Wilson Elser Attorneys, William T. Bogaert, David Eisen, Joanna Piorek and Jason M. Kuzniar Co-authored Recent Developments in Professionals, Officers and Directors Liability in the Tort Trial and Insurance Practice Law Journal, Vol. 47, Issue 1, Fall 2011 published by the Tort Trial and Insurance Practice Section of the American Bar Association.

  • Foreign Corrupt Practices Act Gives Rise to D&O Claims

    June 13, 2012

    Walmart is the latest high-profile target of a string of D&O claims involving the increasingly enforced Foreign Corrupt Practices Act. The SEC and DOJ have maintained an aggressive stance on FCPA violations and enforcement actions, which can lead to shareholder derivative civil actions.
  • Illinois Supreme and Appellate Courts Issue Stern Reminders on Appellate Jurisdiction and Waiver

    June 12, 2012

    The Illinois Supreme Court and two districts of the Appellate Court issued written opinions on appellate jurisdiction and waiver issues, highlighting the perils appellate procedure may hold for the unwary litigant or counsel.
  • Cutting Corners Can Lose an Appeal

    May 9, 2012

    Illinois appellate court warns litigants that an appellate brief cannot be a trial court pleading with a new cover, and all appellate briefs must follow the strict rules of factual and legal citation imposed by the reviewing courts.

  • Illinois Supreme Court Allows Jurors in Civil Cases to Question Witnesses

    April 19, 2012

    Allowing jurors to submit questions can improve juror comprehension of testimony and attention to the proceedings and increase overall satisfaction with jury service. For the litigants, juror questions may provide counsel with the advantage of “real time” glimpses into the jurors’ minds as the evidence is received.
  • Madison County, IL, Judge Eliminates Advance Trial Date Reservations for Asbestos Plaintiffs

    April 2, 2012

    The newly assigned judge to the asbestos docket in Madison County, IL, has ended the ability of local plaintiffs’ firms to “market” trial dates for mesothelioma cases, thereby changing the way plaintiffs’ counsel practice law in Madison County. Judge Clarence Harrison entered an order on March 29, 2012, stating that trial dates will be assigned on a case-by-case basis rather than by pre-assigned trial settings given to specific plaintiffs’ counsel.
  • Fifth Circuit Court of Appeals Continues Trend: Excess Insurers Have No Coverage Obligation Until Underlying Insurer Pays Its Limit

    October 2011

    Insureds entering into settlements with their primary insurers for less than full policy limits hoping to recover from excess insurers do so at their own peril, and excess insurers should be prepared to enforce their exhaustion clauses as written.

  • Claims Against China-Based Reverse Merger Companies: A Tempest in a Teapot of Gunpowder or Green Tea?

    July 2011

    Many China-based issuers have been targeted by regulators and investors alike for purported securities and accounting fraud that could ultimately cost D&O insurers millions in losses.
  • Duty to Protect Employees’ Families at Issue: Is Employer Liable for Secondhand Asbestos Exposure at Premises?

    July 2011

    Amid disagreement among Illinois appellate courts, the Illinois Supreme Court will hear and should ultimately rule on employer liability in secondhand asbestos cases.
  • D&O Insurers Be Aware: U.K. Bribery Act Takes Effect on July 1

    June 2011

    In light of the potential long arm of the Bribery Act, directors and officers (“D&O”) liability carriers should familiarize themselves with the potential increased exposure to their insureds. In addition, D&O insurers would be well advised to consider potential coverage issues under their policies for claims and investigations under the Bribery Act.
  • Illinois Supreme Court Adopts Wilson Elser's Argument and Eliminates Wrongful Birth Defendants' Exposure for Post-Majority Damages

    May 2011

    The Illinois Supreme Court ruled as a matter of first impression that parents asserting a claim of wrongful birth may not recover expenses incurred for the care and support of their disabled child after the child reaches the age of majority. Clark v. Children's Memorial Hospital, No. 108656, 2011 WL 1733532 (Ill. May 6, 2011). This significant victory was won with the amicus curiae assistance of Wilson Elser's Appellate Practice and its co-chair Melissa Murphy-Petros.

  • New FDIC Lawsuits Attack Former Bank D&Os

    May 2011

    Many financial industry insiders and their insurers have been wondering where the Federal Deposit Insurance Corporation (FDIC) has been during the recent financial industry meltdown. As the appointed receiver of failed banks that are federally insured, the FDIC is expected to be at the forefront of litigation against the directors and officers (D&Os) of failed financial institutions.

  • Should You Respond to that SUBPOENA?

    The Mental Health Risk Management Newsletter

    November 2010

    No matter the type of clinical practice a mental health care professional enjoys, the odds are almost certain that a patient will be involved in litigation. Frequently, during the course of discovery in a legal proceeding, a patient’s mental health becomes an issue. Most often the attorneys involved in that case will serve a subpoena on a psychiatrist to produce his records, give a deposition, or come to trial and testify. Should you respond to that subpoena and turn over your records or give a deposition? In Illinois, the answer is usually no.

  • Employer asbestos defendant owes duty of care to families of employees

    July 2010

    On June 10, 2010, the Fifth District Illinois Appellate Court ruled in Simpkins v. CSX Corporation and CSX Transportation that employers owe a duty to protect their employees' immediate family members against take-home asbestos exposure even though no relationship exists between the employer and the family member.

  • Illinois Appellate Court holds rule of estoppel applies to "claims made and reported" policy conditions

    June 2010

    A recent First District Appellate Court of Illinois decision makes it clear that insurers issuing "claims made and reported" policies in Illinois will be subject to the Illinois rule of estoppel, and that such insurers risk losing the right to enforce the reporting condition of such policies if they fail to take appropriate preemptive action.  See, Uhlich Children's Advantage Network v. National Union Fire Ins. Co., 2010 Ill. App. LEXIS 61 (1st Dist. February 3, 2010).

  • Whether and when "English-only" rules in the workplace are discriminatory

    May 2010

    The population of the United States is becoming increasingly diverse.  Recent surveys reflect that Hispanics currently comprise more than 15 percent of the population – more than 46 million people – making them the country’s largest minority group.  As such, employers should make it a priority to become more knowledgeable about issues pertaining to Hispanic-Americans and other non-native English speakers in the workplace in order to avoid potential legal problems now and in the coming years.
  • National Appellate Practice Group 2009 in Review

    March 2010

    Skilled advocates, Wilson Elser's appellate attorneys have earned the firm a reputation for excellence in post-trial and appellate work.  Concentrating on the complex, highly technical, and constantly evolving discipline of appellate procedure, we have the experience needed to plan and execute the most effective post-trial and appellate strategy.  In addition to handling appeals, we provide critical assistance at the trial level, including consultation on the preparation of dispositive pre-trial motions, motions in limine, and jury instructions; participation at trial; and attendance at the jury instructions conference.

  • Illinois strikes down verdict caps

    February 2010

    On February 4, 2010, the Illinois Supreme Court, by a 4-2 ruling, invalidated an Illinois statute which established caps on the amount of non-economic damages such as; pain, disfigurement and loss of consortium, that can be recovered in medical malpractice actions.  In reaching its determination in Lebron v. Gottlieb Memorial Hospital (Ill. Supreme Court Docket Nos. 105741, 105745), the court determined that the statute violated the separation of power provisions stated in the Illinois Constitution by nullifying the court's inherent power to correct excessive jury awards.

  • Appellate Alert

    November 2009

    Wilson Elser's Appellate Practice Group has recently made new law in Illinois with respect to pleading causes of action for defamation per se.  In Green v. Rogers, --- N.E.2d ---, 2009 WL 3063399 (Ill. Sept. 24, 2009), Group Co-Chair Melissa A. Murphy-Petros (Of Counsel-Chicago) convinced the Illinois Supreme Court to hold, as a matter of first impression, that such claims must be pled with the same specificity and particularity as that required in pleading fraud claims.  This ruling not only secured dismissal of the complaint against Wilson Elser's client, but also established new law favorable to defamation defendants throughout the state.

  • Firms must comply with FTC "Red Flags" data protection rule, starting November 1, 2009

    October 2009

    The Federal Trade Commission's "Red Flags" Rule is designed to protect personally identifiable information from data thieves.  Insurance brokerage firms and other service providers that receive payment after their services have been delivered are required to comply.  The compliance deadline is November 1, 2009—data breaches on or after that day may be subject to penalties of up to $3,500 per violation, and could also result in prosecution for violation of state consumer protection or deceptive trade practices laws.  Such laws may permit private individuals to sue and recover treble damages, attorney's fees and/or litigation costs.

  • Accounting firms must comply with FTC "Red Flags" Rule by November 1, 2009

    October 2009

    The Federal Trade Commission's "Red Flags" Rule is designed to protect personally identifiable information from data thieves.  Among others, the Red Flags Rule applies to any business or individual that provides a product or service for which payment is received after the product or service is delivered.  While many might assume that data protection regulation applies only to hospitals and banks, the broad definition of who is covered by the Red Flags Rule very clearly applies to professional services firms that get paid by their clients after the services are provided, which, of course, includes accounting firms.

  • The Duty to Warn in Illinois

    The Mental Health Risk Management Newsletter

    October 2009

    Most mental health professionals are aware of Tarasoff v. Regents of University of California, 17 Cal.3d.425 (Cal. 1976). The 1976 California case held that when a therapist determines that a patient presents a serious danger of violence to another, the therapist has the duty to contact the intended victim, notify the police or take other steps reasonably necessary under the circumstances. Tarasoff set the exception to the general rule that one owes no duty to control the conduct of another. The court in Tarasoff emphasized that therapists have no general duty to warn of each threat, but have a duty to act only where the therapist should have determined that a patient poses a serious danger of violence to a foreseeable victim.

  • Delaware decisions reduce hurdles to defending D&O claims

    September 2009

    A typical claim targeting directors and officers ("D&Os") in the context of a merger or acquisition is that the D&Os breached their fiduciary duties of care and loyalty by failing to get the best deal for shareholders.  However, in a boon to D&Os and their insurers, several recent Delaware court decisions have made it easier for defendants to successfully defend these types of claims.
  • Commencement of Red Flags enforcement by FTC postponed to November 1, 2009

    August 2009

    On July 29, 2009, the Federal Trade Commission ("FTC") announced that the implementation of the "Red Flags" rule, requiring most businesses to adopt a written data security and breach policy, has been postponed by three months, to November 1, 2009.  The FTC has cited the need to assist and educate small businesses with low risk of security breaches regarding the required conduct under the rule.  Businesses now have additional time to prepare for the impact of the rule by bringing their companies or practices into compliance with the rule's requirements.

  • Premises liability asbestos defendant is not liable for second-hand exposure

    June 2009

    Second-hand or bystander asbestos exposure litigation has been increasing in Illinois, but a recent Illinois Appellate Court opinion has held that premises defendants cannot be found liable under a second-hand exposure theory.  On May 29, 2009, the Second District Appellate Court ruled in Nelson, et al. v. Aurora Equipment Company, in a case of first impression, that an asbestos defendant is not liable for alleged asbestos injuries under the theory of premises liability to a plaintiff who was never present on the defendant's premises.

  • Red Flags Rule Enforcement by FTC Begins August 1, 2009

    June 2009

    The Red Flags Rule is designed to protect personal identifiable information from data thieves.  While many people believe that data protection regulation applies only to hospitals and banks, data thieves are attacking other businesses, so regulation has expanded.

  • Nolan v. Weil-McLain decision changes legal landscape

    April 2009

    On April 16, 2009, the Illinois Supreme Court issued its long-awaited decision in Nolan v. Weil-McLain, providing some relief to defendants who have been barred from introducing evidence of other asbestos exposure.

  • Proper Note-taking and Charting

    The Mental Health Risk Management Newsletter

    October 2005

    Over the years, we have seen many therapists lose cases
    due to inaccurate or incomplete charting. Sometimes an entire lawsuit can hinge on the notes or lack of notes contained in a patient’s chart. Every 10 years or so, the theory of notes and charting will change. At one time, therapists preferred not to chart too much and believed “less was better.” Then, attitudes changed and mental health professionals began to chart everything under the sun and would write novellas for every appointment with a patient.

  • Therapy Over the Internet

    The Mental Health Risk Management Newsletter

    November 2002

    Online therapy or “cyber therapy,” defined as the provision of mental health services over the Internet, is a growing field that has created equal amounts of interest and controversy. Prior to engaging in cyber therapy, clinicians should be aware that there are many risk management issues involved in the practice.