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Law in demand Harassment disputes, data breaches fuel practices

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Douglas Eakeley, board chair, New Jersey Institute of Social Justice.
Douglas Eakeley, board chair, New Jersey Institute of Social Justice. - ()

As the world turns, so spins the legal community.

“I anticipate we will see a significant rise in claims of employment discrimination and sexual harassment,” said Douglas Eakeley, a professor of corporate and business law at Rutgers Law School in Newark. “We will also see a significant rise in whistleblower claims in connection with sex harassment, where people will say they lost their job after complaining about inappropriate workplace behavior.”

The reasons for the expanding new areas of dispute, of course, are the crush of public accusations of abuse against people such as Hollywood mogul Harvey Weinstein and others in society’s much-documented “cultural moment.”

But technology is another huge change agent of the moment.

Ever more activity is conducted online, and electronic discovery, or e-discovery, has swelled as lawsuits and legal investigations seek access to emails, e-documents, presentations, databases, voicemail, audio and video files, social media and web sites as part of the chain of evidence.

“This kind of activity will only increase,” Eakeley stressed.

Cybersecurity exposures, involving hack-driven data breaches, also have produced a burgeoning area of practice for law firms.

“There’s a patchwork of state and federal regulations covering disclosure alone, regarding whether and when customers, shareholders, law authorities and regulators have to be notified,” Eakeley noted.

The U.S. Securities and Exchange Commission recently announced plans to release new guidance for publicly held companies about disclosing cybersecurity risks and incidents. In doing so, the SEC stressed the importance of maintaining comprehensive policies and procedures related to cybersecurity risks and incidents.

“When the SEC does this, it’s usually hoped that more disclosure will spur stakeholders to ask companies what steps they’re taking to guard against these risks,” he said. “It’s a way to push them to change their behavior.”

Manufacturers targeted

Product liability is another growing area, said Gavin Rooney, a partner in the law firm Lowenstein Sandler and chair of its business and class-action litigation practice.

“Product liability remains an active area, particularly concerning talcum powder litigation, where some plaintiff lawyers have alleged that talcum powder causes cancer,” Rooney said.

In January, a lawsuit against New Brunswick-based Johnson & Johnson was launched in Middlesex County’s New Jersey Superior Court. The suit claimed that a Verona resident developed mesothelioma, a deadly kind of cancer, after inhaling asbestos from J&J’s talc-based products.

Fee models evolve

For some time, budget-conscious legal clients have been trying to avoid surprises by pressing for capped or flat-fee arrangements.
Increasingly, even more innovative models are emerging, said Douglas Eakeley, a professor at Rutgers Law School in Newark.
"Say you're an institutional investor and you suffer significant losses and suspect that securities fraud was involved," Eakeley said. "Traditionally, if a class-action suit was filed, some investors might opt out and pursue their own case if a law firm agreed to represent them on a contingency fee basis--no fee unless they win [damages].
Yet defendants seldom result in monetary awards, as their goal is simply dismissal.
"[So] some law firms may be willing to accept an alternate arrangement like an incentive, if certain mileposts - perhaps an early dismissal of the case, or a denial of class-action status--are met," Eakeley said.

J&J prevailed last year in a similar suit filed against it in Los Angeles.

A unique New Jersey law also has prompted a rash of suits.

“For a while we saw an explosion of class action filings in New Jersey over the New Jersey Truth-In-Consumer Contract Warranty and Notice Act,” said Rooney. “The statute basically said that any company selling a product to a consumer cannot include a contract clause that violates the consumer’s right.”

It was attractive to class-action attorneys, because it provided for damages of up to $100 per violation — and damages, attorneys’ fees, and other costs — without the need to establish actual injury.

“So plaintiff lawyers would comb through contracts and bring class-action suits against gyms, self-storage facilities and other businesses,” Rooney said. “At one time, new cases were being filed daily, but the courts seem to have cut back on this kind of creative interpretation of the state’s statute.”

Law schools respond to new environment

Law school administrators are also stepping up to meet the changing landscape of the legal profession.

Seton Hall Law is growing our expertise in the legal issues emerging from new technologies and society’s increased reliance on data and data analytics,” said Kathleen Boozang, dean of Seton Hall University School of Law in Newark.

“These trends are creating a host of new questions about what law applies, or whether any law even yet exists that govern these questions,” Boozang said. “So, privacy, data protection, and cybersecurity are hot. And, of course, any area where we see lawmakers producing new legislation impacts our curricular focus.”

“The #MeToo movement has placed renewed stress on employment law and employment discrimination, which has always been a strength at Seton Hall,” Boozang noted.

“The Center for Social Justice, which is essentially Seton Hall’s law firm, is investing new resources in immigration, criminal justice reform, supporting individuals returning to society from prison and addressing the effects of social determinants of health on health care and health finance,” she said. “Faculty experts in many areas are also turning their attention to the challenges of the opioid and guns crises.”

The university also continues to focus on laws affecting the health and life sciences industries and intellectual-property law.

“Almost every practice area is impacted by reforms to the tax code,” the Seton Hall Law dean added. And reflecting yet another burgeoning area, the school recently hired a professor with a focus on energy and environmental law.

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