CLOSE X
RSS Feed LinkedIn Instagram Twitter Facebook
Search:
FMG Law Blog Line

Posts Tagged ‘IT’

Insurer Side Beware: Litigation Privilege for Pre-Suit Communications Extends Only To The Party Contemplating Filing Of Litigation

Posted on: January 14th, 2019

By: Tim Kenna & Kristin Ingulsrud

Strawn v. Morris, Polich & Purdy—filed Jan. 4, 2019, Court of Appeal of California, First District, Division Two 2019 Cal.App. LEXIS 9*—makes explicit that the application of the litigation privilege to pre-suit claims communications where the policyholder disputes its contemplation of litigation only applies to policy side interests if the insurer is contemplating litigation in good faith.

The litigation privilege makes inadmissible any communication made in judicial or quasi-judicial proceedings. California Civil Code § 47(b)(2). This privilege extends to pre-litigation statements relating to litigation contemplated in good faith and under serious consideration. Action Apartment Assn., Inc v. City of Santa Monica (2007) 41 Cal.4th 1232, 1251.

In Strawn, the insureds brought a cause of action for invasion of privacy against State Farm’s counsel based on the alleged wrongful transmittal of the insureds’ tax returns to State Farm in connection with a coverage investigation involving potential arson. The MPP argued that the transmittal was protected by the litigation privilege because it was in anticipation of the civil action the insureds “would surely and did in fact” file. The trial court agreed and sustained the demurrer based on the litigation privilege.

The California Court of Appeal reversed. In order for the insurer to apply the privilege to its own communications, the Court held, the insurer would need to establish that it was contemplating litigation in good faith when it received the tax returns.

There have been cases in which the courts have held that routine claims communications relate to the business of insurance and are not protected speech. See, e.g. People ex. Rel. Fire Insurance Exchange v. Anapol (2012) 211 Cal.App.4th 809. Other cases have attempted to discern whether the communications themselves establish a good faith consideration of litigation. Blanchard v. DIRECTV, Inc. (2004) 123 Cal.App.4th 903.  Strawn seems to go one step further in requiring the movant to establish that IT was contemplating the filing of litigation in good faith. Strawn appears to hold that at least in a case of disputed intent of the policyholder, the insurer side’s good faith subjective or objectively reasonable belief that the policyholder was contemplating litigation is irrelevant. Thus, where claimants’ counsel threatens suit, there was no protection to the insurer side no matter how unlikely settlement.

Strawn’s effects may be felt by litigants who attempt to utilize the litigation privilege in furtherance of dispositive pre-trial motions, including anti-SLAPP and motions for summary judgment.  First, Strawn emphasizes that good faith is a question of fact that must be determined before the litigation privilege can apply. Second, it severely limits the application of the litigation privilege in favor of any party who is responding to a perceived threat of litigation, even if that perceived threat is objectively reasonable.

If you have any questions or would like more information, please contact Tim Kenna at [email protected] or Kristin Ingulsrud at [email protected].

A Contradiction In Terms – Recent Developments On 3rd Party Placement Of STEM Opt Students

Posted on: July 13th, 2018

By: Kenneth Levine

In April 2018, USCIS issued official guidance that precluded the assigning of a U.S. employer’s STEM OPT employees to off-site third-party locations.  A STEM OPT employee is a foreign national who is pursing “practical training” through a U.S. employer after having received a degree from a U.S. college/university in a science, technology, engineering or mathematics program.  This development was viewed as especially detrimental to IT consulting companies, whose business model is largely predicated on providing IT services to 3rd party client sites.   These client sites have always served as a fundamental training ground for recent graduates of information technology programs.

In issuing the April guidance, USCIS appears to have blatantly disregarded conflicting guidance that remains in effect.  3rd party placement of STEM OPT employees by staffing agencies is clearly permitted in the preamble to the STEM OPT regulation (8 CFR 214.16 and 81 FR 13040, 3/11/16) and ICE’s “Frequently Asked Questions and Answers” document.

The ICE FAQ addresses this issue as follows:

STEM OPT students are permitted to use staffing/placement agencies to find a training opportunity. However: … [a]ll STEM OPT regulatory requirements must be maintained, and … [t]he staffing/placement agency cannot complete and sign the Form I-983 as an employer, unless … the staffing/placement agency is an E-verified employer of the student, and … [t]he staffing/placement agency provides and oversees the training.

FMG Immigration Attorneys have received recent independent verification from colleagues that H-1B petitions are being approved where USCIS sought to challenge eligibility for the visa based on 3rd party placement of the OPT STEM employee.   Accordingly, so long as it can be demonstrated that each element of the above referenced ICE guidance for 3rd party placement (including full compliance with the I-983 training program) have been satisfied, then there is no reason for staffing companies to discontinue this practice.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected].

Electronic Medical Records – IT Guides for a New Frontier

Posted on: August 27th, 2012

By: Michael Eshman
It is clear that electronic medical records and exchanges are the wave of the future in healthcare. For better or worse, the electronic management and maintenance of files and records will transform the healthcare industry.

In December 2011, Georgia Health News reported on the medical revolution coming with online records and the statewide exchange Georgia is building with the help of a $13 million federal grant. In addition to the economic factors driving the change, in our prior blog post titled “Electronic Medical Records – Saving More Than Trees,” we noted that a recent Harvard study found medical malpractice claims dropped in Massachusetts after doctors began using electronic records. There are great rewards and incentives to adopt electronic medical records and to be part of the expanding record exchanges, both for the quality of care that can be provided to patients and for the economics and efficiency of practice management.

However, any practice using electronic medical records should lean heavily on trusted IT professionals to ensure the privacy and security of the records. As noted by Georgia Health News in the column linked above, the Ponemon Institute reports that the number of reported medical data breaches has increased by 32 percent since 2010.

In a recent brazen attack, hackers accessed the computer network of a small practice in Lake County, Illinois, but instead of merely stealing and reposting the records, they encrypted the records and posted a digital ransom note for payment in exchange for the password. It is unclear whether the records were backed-up, but if not, the hackers effectively held hostage the medical records of patients.

As more practices move to electronic records, and as medical record exchanges expand nationwide, the incidents of attempted hacks will likely increase, and it will fall to the practices and the administrators of the exchanges to manage the risk associated with maintaining and sharing electronic records. Electronic records and exchanges are part of the new frontier for medical providers, and there are great benefits to be gained from the advancements. But providers are wise to focus on the issues of data management and security and to lean on trusted IT professionals and risk managers for guidance.

Thoughts and questions are always welcome.