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Archive for June, 2021

Can an Ancient Tool From the Age of Sail Sink Cyber Criminals?

Posted on: June 30th, 2021

By: Barry Miller

Image by Rujhan Basir from Pixabay

As early as the 13th-century, governments licensed private sailors—“Privateers”— to seize vessels belonging to enemy nations, issuing letters of marque and reprisal to ship owners and captains.

Some American commentators have suggested reviving that idea in response to cyber-attacks, especially attacks backed by nation-states. A hack this spring that shut down the Colonial Pipeline—which transports 45 percent of all fuel consumed on the Eastern Coast of the United States—may encourage this approach.

The United States Constitution authorizes Congress to issue such letters. Article I, Section 8, Clause 11 grants it the power to “declare war, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”

“Outside of the law reviews and scholarly debates over the allocation of war powers, the Marque and Reprisal Clause has played little if any role in modern times,” according to the Heritage Foundation, which notes that the United States has not issued such a letter since the War of 1812.

Two centuries later, military historians began reminding us that everything old is new again.

  • In 2012, Commander Jonathan L. Still wrote “Resurrecting Letters of Marque and Reprisal to Address Modern Threats,” for the U.S. Army War College. While cyber threats were not exclusive to the “modern threats” Cmdr. Still addressed, he noted “growing recognition of the cyber domain as a new frontier in which conflict resembles earlier ages of warfare and in which corporate and intellectual piracy have considerable effects on national security and the U.S. economy.” While questions might remain whether letters of marque can be fashioned to meet cyber-attacks, “the Congressional authority to issue Letters of Marque and Reprisal remains, having never been repealed.” 
  • In 2013, Major Christopher M. Kessinger wrote “Hitting the Cyber Marque: Issuing a Cyber letter of Marque to Combat Digital Threats.” (The Army Lawyer, August 2013, reprinted at InsuranceNewsNet, November 6, 2013.) Maj. Kessinger suggested that “[a]pplying a letter of marque scheme to the cyber world would not only provide authority for American companies to defend themselves from cyber threats but allow them to take proactive measures to neutralize a cyber threat before it coalesces into danger.”
  • Ensign Lucian Rombado, U.S. Navy, wrote a 2019 article for the U.S. Naval Institute Magazine answering critics of the Active Cyber Defense Certainty Act, which would authorize private companies to conduct cyber “hack backs.” A former NSA deputy director called the idea an “epically stupid” one that might lead to uncontrollable escalation. Ensign Lombardo noted that private companies already are engaging in hack backs, and suggested that the Act would help legitimize and regulate such conduct. The alternative would be to leave “U.S. companies effectively defenseless against such attacks.” The bill, introduced in June 2013, did not receive a vote.
  • On May 14, 2021, in the Wall Street Journal Thomas Ayres (recently retired as general counsel of the U.S. Air and Space Forces, and a retired U.S. Army major general) called for “A Maritime Solution for Cyber Privacy.” Mr. Ayres noted that corporations lack the incentive to cooperate with authorities and timely report data breaches. “Historically,” he noted, “such letters provided financial incentives to overcome fear and inaction in the face of dangerous outcomes and national need. On the high seas, they assured standing and rights in admiralty courts that awarded ‘prize money’ when pirate ships were sunk or captured.”

DarkSide, the group that perpetrated the Colonial Pipeline hack, has ceased operations. On May 14, the same day Mr. Ayres published his commentary, Krebs on Security reported that DarkSide was disbanding “after its servers were seized and someone drained the cryptocurrency from an account the group uses to pay affiliates.”

It now appears that the federal government, not a private entity, effected the seizure of DarkSide’s Bitcoins. But Krebs reports that Darkside’s shutdown may have resulted from disagreements among hackers over appropriate targets, suggesting that state-authorized private action may still have a place in the cyber wars.

If you have any questions, please email Barry Miller at [email protected].

Oh, Snap! Supreme Court Rules School District Violated Cheerleader’s First Amendment Rights in Mahanoy Area School District v. B.L

Posted on: June 24th, 2021

By: Tia Combs and Racheal Slimmon

On Wednesday, the U.S. Supreme Court reversed a controversial holding by the Third Circuit that schools cannot regulate students’ speech outside of the school’s walls. In doing so, the Court reaffirmed that while a school’s ability to restrict student speech outside of the schoolhouse gates is less than it would be inside, it does continue to play an important role in school governance.

In Mahanoy Area School District v. B.L., the Supreme Court addressed the case of a high school student who took her frustration in not making her school’s varsity cheerleading team to Snapchat. She posted a photo, complete with a caption containing profane language criticizing the outcome, and another comment questioning the team’s leadership decision-making. Although the student posted the Snapchats outside school hours and away from the school’s campus, the junior varsity cheerleading coach suspended the student from the team for a year.

As expected, the Court explicitly declined to fashion a rule defining exactly when schools can regulate off-campus student speech. Instead, the Court, relying on the precedent set in Tinker and its progeny, held that while schools’ ability to regulate off-campus speech is much less great than their ability to regulate speech inside the building, it is still a viable concept. The majority opinion acknowledges that in the modern world, there may be situations in which school needs to regulate off-campus student speech, such as online schooling, breaches of school security and school computers, writing papers, bullying, threats, and speech that targets specific individuals. 

The Court highlighted three aspects of off-campus speech that diminish the “unique educational characteristics” which permit schools to regulate students’ on-campus speech when such regulation would ordinarily violate the First Amendment. First, schools rarely stand in place of parents off-campus. Second, regulation of both on-campus and off-campus runs the risk of allowing the school to regulate all speech ever uttered by a student. Third, schools have an interest in protecting students’ unpopular expression, especially away from school.

As for B.L.’s speech, the Court ruled the school district violated the student’s First Amendment rights by disciplining her. The Court explained the district’s interest in regulating the cheerleader’s speech was diminished because the Snapchats were posted away from school, the speech was directed toward a private group of the student’s friends, the posts did not identify the school or target any person, and there was little evidence that the Snapchat posts disrupted the school environment. Thus, while the Court has now made it clear that schools may regulate off-campus student speech, B.L.’s case was not a case where this regulation was permissible.

Read the full opinion here:

If you have any questions, please contact Tia Combs at [email protected] and Rachael Slimmon at [email protected]

READY TO RE-OPEN? Be Aware of California’s New Right-of-Recall Law and Implications for Employers in the Hospitality, Event Center, Airport, Private Club, and Commercial Property Service Industries

Posted on: June 22nd, 2021

By: Mandy Hexom

On April 16, 2021, Governor Newson signed into law a right to notice and recall of certain employees in the hospitality, event center, airport, private club, and commercial property service industries who were laid off due to the effects of the COVID-19 pandemic. This new law is set forth in California Labor Code Section 2810.8, which became effective immediately and does not expire until December 31, 2024.

What businesses or employers must comply?

  1. Hotel Employers
  2. Event Center Employers
  3. Airport Service Providers
  4. Airport Hospitality Employers
  5. Private Club Employers
  6. Commercial Property Service Providers

What if the ownership, organization, or location of the business changed?

Even if the ownership or organization of the business changed, if the business still operates the same or similar operations as before the COVID-19 state of emergency, the business must comply with this new law. The same is true if the business moved offices or locations.

Requirements of the Right-to-Recall Law

  1. Covered Employees: This law applies to laid-off workers that performed at least two hours of work during a six month period (including leave and vacation time), in the 12 months preceding January 1, 2020, that were terminated or separated due to a reason related to the COVID-19 pandemic and not due to a disciplinary reason. The employee is qualified if the employee held the same or similar position at the time of the COVID-19 lay-off.
  2. Opening a Position and Notice: Within five business days of establishing a position, an employer shall offer its laid-off employees in writing (by personal service or by mail to last known address and by email and text message, if possible), all job positions that become available for which the employee is qualified. The employer must provide at least five business days’ notice to the employee to accept or reject the position.
  3. Multiple Employees for One Position: If more than one laid-off employee qualifies for an open position, the position should be simultaneously and conditionally offered to each qualified employee. The conditional offers should indicate that the employee with the longest length of service gets priority, if accepted.
  4. Written Notice When Laid-Off Employee Not Hired: An employer that does not recall a laid-off employee on the grounds of lack of qualifications and instead hires a non-laid-off employee, written notice must be provided within 30 days including the length of service of the employee hired and all reasons for the decision.
  5. Recordkeeping: Employers must retain records for at least three years of the employees (i) full legal name; (ii) job classification at time of lay-off; (iii) date of hire; (iv) last known residential address, email, and telephone number; and (v) copies of written notices and communications regarding the lay-off and offers of employment.

How is the Right-to-Recall Law Enforced?

Non-compliance with Labor Code Section 2810.8 will give the former employee a right to file a complaint with the Division of Labor Standards Enforcement. A private right of action to file a lawsuit in court is not permitted. An aggrieved employee can recover front pay, back pay, lost benefits, and/or reinstatement if the employee prevails.

Depending on how many employees are covered within the business, civil monetary penalties ($100) and liquidated damages ($500) per employee for each day the law is violated until the violation is cured can be enormous.

However, there may still be a right to file a lawsuit for certain aggrieved employees. Check your local ordinances as cities or counties in San Diego, Carlsbad, Los Angeles, Pasadena, Oakland, Santa Clara, and San Francisco have also passed similar local laws. These local versions of the Right-to-Recall may permit an aggrieved employee to file a lawsuit in court.

For covered employers, carefully read and follow the requirements of Labor Code Section 2810.8. Click the following link for the full text of Labor Code Section 2810.8:

If you have any questions, please contact Mandy Hexom at [email protected] or 619-515-5403.

Certiorari in the Georgia Supreme Court by the Numbers

Posted on: June 22nd, 2021

By: Jacob Daly

The Georgia Court of Appeals has just ruled against your client, and so you’re considering whether you should file a petition for a writ of certiorari in the Georgia Supreme Court. Your client wants to know the likelihood of your petition being granted and, if it is granted, what the possible outcomes are likely to be. You have a vague understanding that most petitions are denied and that the odds of reversal are good when a petition is granted, but you do not know the exact numbers to tell your client. Now you do.

Between 2017 and 2020, the Georgia Supreme Court ruled on 1,883 petitions, 1,166 of which were filed in civil cases. It granted only 174 of all petitions and only 119 that were filed in civil cases.[1] In 2017, the Court ruled on 516 petitions (289 in civil cases) and granted 52 (35 in civil cases). In 2018, the Court ruled on 407 petitions (251 in civil cases) and granted 47 (33 in civil cases). In 2019, the Court ruled on 464 petitions (300 in civil cases) and granted 43 (31 in civil cases). In 2020, the Court ruled on 496 petitions (326 in civil cases) and granted 32 (20 in civil cases). Thus, the overall odds of a petition being granted were 10.08% in 2017, 11.55% in 2018, 9.27% in 2019, and 6.45% in 2020, for a 4-year rate of 9.24%. In civil cases, the odds of a petition being granted were 12.11% in 2017, 13.15% in 2018, 10.33% in 2019, and 6.13% in 2020, for a 4-year rate of 10.21%. Until the numbers for future years are available, it is impossible to know whether the down numbers for 2020 represent a shift in the Court’s (un) willingness to grant petitions or just an anomaly related to COVID-19.

Once you tell your client the odds of a petition being granted are only about 10%, the next question is likely to be about the expected outcome if your petition happens to be among the lucky few that are granted. In the 174 total cases in which the Court granted a petition between 2017 and 2020, there were 12 different outcomes.  And in the 119 civil cases in which the Court granted a petition between 2017 and 2020, there were 10 different outcomes. These various outcomes are reflected in the chart below.

From the standpoint of the petitioner, the goal is to obtain a change to the ruling of the lower court. An outright reversal is the best possible outcome for the petitioner, and it is also the most frequent outcome (this is not surprising because the Court can “affirm” the lower court’s decision by denying the petition. If the Court wants to reverse the lower court’s decision, it must first grant the petition). An outright reversal was the outcome in 65 of 174 cases (37.36%) in which the Court granted a petition, including 50 of 119 civil cases (42.02%). But an outright reversal is not the only favorable outcome for the petitioner. The outcomes listed in the chart above that would be at least partially favorable for the petitioner are reversed, vacated, vacated and reversed, affirmed in part and reversed in part, reversed in part and vacated in part, affirmed in part and vacated in part, reversed summarily, and vacated summarily. Including all of these outcomes together yields a favorable outcome rate for the petitioner of 64.37% in all cases (112 of 174 cases decided wholly or partially in favor of the petitioner) and 66.39% in civil cases (79 of 119 cases decided wholly or partially in favor of the petitioner).

In contrast, the outcomes that would be completely negative for the petitioner are affirmed and dismissed as improvidently granted. Combining these outcomes yields a completely negative outcome rate for the petitioner of 29.89% in all cases (52 of 174) and 29.41% in civil cases (35 of 119). The only other outcomes are cert dismissed on motion and no decision yet, which represent only 5.75% of all cases (10 of 174) and 4.20% of civil cases (5 of 119). These outcomes cannot be characterized as favorable or unfavorable for the petitioner because (1) a petition that is dismissed pursuant to a motion probably means that the case settled, and (2) a case that has not yet been decided can still be decided either way. When the Court decides the 5 undecided cases (4 criminal and 1 civil), these numbers will change slightly, but not enough to alter any conclusions that may be drawn from them.

In conclusion, an analysis of the petitions decided by the Court between 2017 and 2020 and the outcomes in the cases in which the petition was granted confirms what most attorneys probably assume. That is, there is a very low chance of the Court granting a petition and a very good chance of at least a partially favorable outcome for the petitioner in those few cases. For attorneys handling civil cases, the odds of the Court granting your petition are only 10.21%, but once your petition has been granted, the odds of success greatly increase, depending on how you define success. If you define success as nothing less than an outright reversal, you have a 42.02% chance of achieving that goal. However, if you define success as any outcome that has some negative impact on the lower court’s decision, then you have a 66.39% chance of success.

For questions, please contact Jake Daly at [email protected] or (770) 818-1431.

[1] There was one civil case in 2018 and one civil case in 2019 in which a petition was filed and granted with a note indicating that the case would be treated as a direct appeal rather than as a cert case. Those two cases are not included in this analysis.

Supreme Court of Kentucky Defines Scope of Amended Peer Review Statute for Many Healthcare Entities

Posted on: June 22nd, 2021

By: Kyle Virgin

The discoverability of peer review information in healthcare litigation is a hot-button issue across the country and Kentucky is no different. In 2018, the Kentucky General Assembly amended KRS 311.377 to state that peer review information “shall not be subject to discovery, subpoena, or introduction into evidence, in any civil action in any court, including but not limited to medical malpractice actions…” Last Thursday, the Supreme Court of Kentucky provided some much-needed clarity regarding the scope of the protections afforded by KRS 311.377 as amended. 

In Jewish Hospital v. Honorable Mitch Perry, Jefferson Circuit Court Judge, et al., the Court granted a writ of prohibition filed by the hospital aimed at prohibiting the use of a root-cause analysis at trial. Importantly, the opinion addresses whether KRS 311.377 should be applied retroactively to cases pending when the amendment was passed and, also, if the specific root-cause analysis at issue is privileged under the statute.

As for retroactivity, the Court focused on the effect of the amendment on the pending litigation and held that KRS 311.377 is procedural in nature thus allowing it to be applied retroactively to previously pending litigation and/or peer review actions that occurred prior to the amendment of the statute.

After concluding that the statute could be applied retroactively, the Court provided guidance regarding the scope of the protections afforded. Ultimately, the Court held that KRS 311.377 offers broader protections than the federal protections provided by the Patient Safety and Quality Improvement Act of 2005. The important point here being that the statute privileges materials even if they are not submitted to another body as is required by the Patient Safety and Quality Improvement Act of 2005.

Healthcare entities who routinely participate in peer review processes should take note of this decision and take the necessary steps to ensure that any such reviews are protected as applicable.

For more information, please contact Kyle Virgin at [email protected]