Fall is synonymous with back-to-school season, so it’s only appropriate that this issue’s cover story delves into an educational topic.
Some organizations maintain that chief compliance officers need law degrees- a misguided belief that could lead them to pass up some of the strongest contenders for the job, as Natalia Grindler Corsini of Prae Venire explains.
“This view that CCOs need a Juris Doctor to be successful can overshadow the diverse skills and experiences that are crucial for the role,” Corsini writes. “Worldwide, the success of many effective CCOs without JDs proves that a law degree alone doesn’t guarantee effective compliance oversight.”
Corsini argues the importance of practical, results-driven skills such as risk management, communications, and strategic thinking to the CCO role. Often what we learn on the job and in the real world can be more valuable than any formal degree.
To that point, lawyers- and others operating in the legal sphere- should never stop learning. This issue is packed with insightful, actionable content that will help you excel in your career.
For starters, enroll in Contract Review 101 with Chris Wlach, General Counsel at Huge. In his article, Wlach explains why reviewing contracts from the top to the bottom isn’t the best approach. Learn more about his “disorderly” hopscotch methodology and test it out next time you are reviewing a contract.
Elsewhere in the issue, you can learn about mitigating risk for your organization in several key areas. Check out these stories on website compliance with the Americans with Disabilities Act (ADA), class-action litigation, copyright infringement and GenAI policies.
Milton Hooper, Senior Discovery Analyst at iDiscovery Solutions, provides something resembling a guest lecture for this issue. In his article for us, he reflects on the evolution of legal technology throughout his career, particularly the emergence of eDiscovery and the importance of preserving and processing electronic data.
We’re thrilled to bring you this diverse range of thought leadership. But it’s important to remember that this edition of the magazine represents just a small selection of the content we are publishing every day on our site.
Be sure to check our site regularly and follow us on LinkedIn and X for the latest updates.
Thanks for reading,
Amanda Kaiser Editor-in-Chief
Dispute Resolution Clauses
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10
10 Do Chief Compliance Officers Need Law Degrees?
By Natalia Gindler Corsini
The view that chief compliance officers need law degrees can overshadow the diverse skills and experiences that are critical for the role.
EDISCOVERY
14 Reflecting on Litigation Technology’s Evolution: An EDiscovery Analyst’s View
By Milton Hooper
Milton Hooper of iDS (iDiscovery Solutions) reflects on the fast-evolving world of litigation technology and the trajectory of his career.
LEGAL OPERATIONS
16 Why a “Disorderly” Approach is the Best Way to Review Contracts
By Christopher Wlach
Learn why a linear strategy is not the best way to review contracts and what you and your team should do instead.
16
OPERATIONS
18 Why Your Org Needs to Craft a Comprehensive GenAI Policy Now
By Leonard Dietzen
Discover best practices for developing an effective GenAI policy and why it’s essential to act fast.
20
20 Anticipating Class-Action Litigation: A Playbook for In-House Counsel
By Stephen Carey
and
Corri Hopkins
Class-action litigation continues to rise. Learn about the key things in-house counsel should know before and after their company has been served with a complaint.
22 Analyzing the Supreme Court Ruling on the Time Bar and Copyright Infringement Claims
By Kelley S. Gordon and Gregory J. Chinlund
Learn what you and your organization should know about copyright infringement claims and the recent Supreme Court ruling on time bars.
RISK MANAGEMENT
24 How Companies Should Mitigate the Risks of Digital Accessibility Litigation
By Allison Kratz
Learn what steps your company should take to mitigate the risks of digital accessibility litigation.
Despite the evolving professional landscape, some organizations still believe that chief compliance officers need law degrees. This view that CCOs need a Juris Doctor to be successful can overshadow the diverse skills and experiences that are crucial for the role. Worldwide, the success of many effective CCOs without JDs proves that a law degree alone doesn’t guarantee effective compliance oversight.
Imagine a CCO with a JD but
lacking critical skills such as risk management, communication, and strategic thinking. The CCO might struggle with key compliance issues, putting the company at risk and demonstrating the need to value practical, results-driven skills over a credential that doesn’t fully capture the role’s demands.
We need to recognize and appreciate the diverse skill sets that drive successful compliance management. Let’s examine the reasons a JD has been considered necessary for CCOs:
• To understand the law. Understanding the law doesn’t require a law degree. Professionals from fields like accounting, engineering, or finance can gain legal knowledge through experience and continuing education. I’ve seen JD holders in compliance roles who lacked the understanding of specific laws like the Foreign Corrupt Practices Act or Export Controls, causing stress for their teams. Effective compliance requires more than just interpreting complex texts. It needs a broad skill set.
• To approach problems like a lawyer. A CCO’s role involves assessing and mitigating risks, while a lawyer’s role focuses on managing liability. Understanding risks requires a comprehensive view of the industry, company operations, and leadership, which often goes beyond what lawyers can provide. Lawyers may excel in theory but lack practical business insights. Effective compliance program design needs strong critical thinking skills, which may differ from a lawyer’s approach. Legal departments handle liability and legal gaps, while CCOs manage the broader program.
• To exercise attorney-client privilege. Attorney-client privilege is limited to legal departments.
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CCOs must maintain an opendoor policy, handle information effectively, and address issues without withholding details. Conflicts of interest arise if the CCO tries to manage legal matters, emphasizing the need for clear role separation.
THE SKILL SETS A CCO NEEDS INSTEAD OF A JD
CCOs might come from various backgrounds, for example, an accountant excelling in fraud prevention, an engineer managing compliance programs, an auditor setting controls, a finance professional handling analytics, a human resource expert in persuasion, or a lawyer interpreting laws. However, no single skill set defines a great CCO.
Among other non-legal tasks, a CCO must:
• Conduct risk assessments
• Recruit and manage the team
• Design, implement, and manage the program
• Oversee the budget
• Conduct training sessions
• Report performance updates
• Develop and enforce policies and procedures
• Promote ethics through various channels
• Collaborate on high-risk projects and compliance strategies
• Oversee due diligence processes
• Address misconduct, lead investigations, and make recommendations
• Analyze employee feedback to enhance culture
The belief that chief compliance officers need law degrees reflects a misunderstanding of the CCO role. Effective compliance requires strong
communication, critical thinking, problem-solving, and project management skills. While a law degree might bring legal knowledge, it doesn’t guarantee the other essential skills needed for effective compliance oversight.
The focus on a credential could indicate a company’s confusion about compliance. Viewing it as a liability concern rather than a vital risk-reduction component is a red flag.
CCOS WITH A JD STILL NEED LEGAL SUPPORT
An effective compliance program must adapt to changing laws, regulations, and ethical standards. To manage it, a company needs a separate attorney for legal aspects, regardless of whether the CCO holds a JD. The attorney provides the legal framework that the CCO uses to design and implement the program. This separation is crucial during program development and implementation to avoid conflicts of interest. The CCO should work independently from the legal department but in partnership with it.
BEYOND THE LAWS: TRUE COMPLIANCE
Compliance programs do more than meet legal requirements or avoid penalties. They shape an organization’s culture and integrate integrity into its core. The Office of Inspector General stresses that compliance officers should operate independently from the legal department. Companies must clearly distinguish between compliance and legal roles to avoid complications if issues go to court.
In today’s dynamic regulatory environment, compliance needs a
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holistic approach. The ideal compliance professional understands compliance, legal matters, business operations, and organizational culture. Without this comprehensive approach, a compliance program risks becoming merely theoretical and ineffective.
Natalia Gindler Corsini, founder and managing director of Prae Venire, advises US and international companies on corporate compliance and ethics programs. Gindler Corsini has extensive experience in finance and international trade. Her expertise includes anti-corruption, export controls, corporate investigations, and compliance audits.
Reflecting on Litigation Technology’s Evolution: An EDiscovery Analyst’s View
By MILTON HOOPER EDISCOVERY
Two years ago, I stepped away from my role as a litigation technology specialist with the United States Attorneys’ Office. It marked the end of a remarkable journey—a journey that allowed me to witness the profound transformation in litigation technology and eDiscovery firsthand. Picture this: back in the day, we were kneedeep in banker’s boxes, manually applying Bates labels while battling flatbed scanners and wrestling with
Microsoft Access databases. Fast forward to today, and we’re riding the digital wave, leveraging AI and cloud computing to manage terabytes of data with just a few clicks.
Reflecting on my journey, it’s incredible to see how far we’ve come. Those early days were defined by the tedious task of scanning endless paper documents, where entire rooms were filled with cases. Now, we seamlessly process colossal volumes of digital data. The frantic rush
to copy files for opposing parties feels almost nostalgic.
FROM DISKETTES TO CLOUD
I still remember my first encounter with a document database on an all-in-one PC with an optical disc drive. It was a game-changer. We swiftly transitioned from diskettes to CDs, DVDs, Blu-ray discs, and then to flash drives and external hard drives, finally embracing the limitless potential of the cloud. I even engineered a “credit card” style flash drive to streamline our tracking and return systems. Innovation was the name of the game, and complacency was never an option.
In fact, I was never content with the status quo. I always sought more efficient ways to serve justice, unafraid to explore new ideas. Not every attempt hit the mark, but each step forward represented progress. The infusion of young, tech-savvy talent brought a fresh wave of energy and creativity, igniting our collective efforts. Navigating the bureaucratic red tape of a government agency presented its challenges, but it was crucial for driving meaningful change.
My career, punctuated by memorable moments and colorful characters, earned me many accolades from
defense attorneys and even a few defendants. One instance stands out: a captivated defendant during a recess expressed interest in purchasing the technology I was using—unless, of course, he ended up in jail. Spoiler alert: he did. Another memorable moment featured a defense attorney complementing our technology while his client echoed, “Yeah, that was cool.” He too found himself on the wrong side of the law.
THE EMERGENCE OF EDISCOVERY
The emergence of eDiscovery in the latter years of my career marked a watershed moment, underscoring the critical importance of preserving and processing electronic data. Convincing veteran prosecutors, who were accustomed to hard copies, to embrace eDiscovery was no small feat. Thankfully, many adapted, empowered by a new generation of tech-savvy prosecutors. Education was non-negotiable—training legal staff in eDiscovery became the principal step toward overcoming challenges and achieving success.
We’ve come a long way from flatbed scanners to today’s AI-driven solutions. As the landscape continues to evolve, collaborating with eDiscovery experts is increasingly important. Their technical acumen and insights into modern data management are invaluable.
ADAPT PROACTIVELY
Litigation, technology, and eDiscovery continue to advance at breakneck speed. It’s not just about sticking with one tool but cultivating a mindset of continuous innovation and adaptability. While change can be challenging and often meets resistance, it’s crucial to embrace
proactive adaptation. Those who work alongside eDiscovery specialists are better equipped to guide their practices through these transitions, ensuring effectiveness in a complex legal environment.
As organizations welcome the shift toward advanced litigation technologies, collaboration with eDiscovery experts becomes a necessity. Legal teams should foster a culture of shared expertise, as innovation thrives in an
The emergence of eDiscovery in the latter years of my career marked a watershed moment, underscoring the critical importance of preserving and processing electronic data.
environment of collective knowledge. By integrating eDiscovery specialists into their strategies, legal professionals can tap into their prowess in preserving, collecting, analyzing, and presenting evidence. This collaborative approach ensures teams have access to advanced methodologies, effectively mitigating risks and maintaining evidence integrity.
Investing in specialized eDiscovery expertise may seem like a hefty expense upfront, but the dividends are substantial. Precision, efficiency, and strategic risk management can be the difference between a case won and an opportunity missed. By adopting best practices, legal teams can remain ahead of
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the curve, leveraging cutting-edge technologies to streamline your operations. For those committed to legal excellence, championing innovation is not just beneficial; it leads to more favorable outcomes and fosters a stronger, more resilient practice.
NEVER STOP LEARNING
Having witnessed the relentless evolution of litigation technology from managing physical evidence to adopting cloud-based solutions, I can attest to the impact of having the right tools. Today’s litigation landscape is characterized by a rapid pace, which makes exceeding client expectations essential. Legal professionals must prioritize innovation and adaptability, actively pursuing opportunities for growth and learning in emerging technologies. Integrating advanced litigation solutions isn’t a solo act but a collective effort. When we collaborate and leverage each other’s strengths, we witness the impact of justice unfold, revealing the difference we can make together. The bottom line: embrace change or risk falling behind.
iDS (iDiscovery Solutions) with extensive expertise in eDiscovery, IT, and litigation support. His background includes a distinguished tenure at the United States Attorneys’ Office.
Milton Hooper is a Senior Discovery Analyst at
Why a “Disorderly” Approach is the Best Way to Review Contracts
By CHRISTOPHER WLACH
Chances are that this is the first sentence you’ve read in this article. That only makes sense. Starting from the top and making one’s way to the bottom is the conventional path readers make through articles, emails, novels and many other written forms of content. But for lawyers, that’s not the best way to review contracts.
A “disorderly” approach to contract review is actually more effective. Think of newspapers or magazines, where many readers start with an article or section of interest, then
wend their way through the rest of the publication. Or take reference works, whose entries are consulted as needed. And don’t forget websites, where pages interlink in complex webs.
THE LONG AND WINDING CONTRACT
In both organization and function, contracts resemble modular reference works more than linear narratives. Their structural variability shows as much. Some contracts lead off with a “definitions”
section; others close with one. Miscellaneous or “boilerplate” terms typically occupy a contract’s rear quarters, but their exact placement within that area differs widely across forms.
Attorneys also tend to use executed contracts like reference works, skipping to provisions relevant to their immediate needs.
CONTRACT ORGANIZATION CAN BE ARBITRARY
However contractual sections are numbered, their placement within
the document often reflects convention — adherence to a long-standing template, copying from a prior agreement — or simply the drafter’s arbitrary choices. Sure, one discerns some order: clauses core to the transaction upfront, boilerplate toward the back. But a contract is rarely a meticulously set mosaic. So why treat it like it is? Instead start by taking a bird’s-eye view of the contract’s landscape; then plot a course that makes sense.
REVIEW SIMILAR TERMS TOGETHER, WHEREVER THEY SIT
One approach is to review substantively similar provisions together, wherever they may sit in the doc. For instance, one might work through financial terms as a group — like
Start by taking a bird’s-eye view of the contract’s landscape; then plot a course that makes sense.
payment, pricing, taxes — or tackle indemnities, limits of liability, and insurance together. Or, to the follow the suggestion of contract guru Kenneth Adams in a recent blog post, sort the pile of “miscellaneous” clauses into topics like dispute resolution and contract administration. By batching together related terms, the reviewer better sees how those terms interact.
DIVIDE AND CONQUER
In most organizations, complex agreements need input from multiple
stakeholders. Apart from legal edits, the contract may require feedback from personnel in finance, tax, IT, privacy, and other departments. Coordinating all those parties’ reviews can create delays.
One way to streamline this process is to identify the relevant departments’ sections at the outset. Rather than work through the entire document before tagging others in, the attorney can ship those sections off for review, then turn to the rest of the agreement.
APPROACH IT LIKE A GAME
Another advantage to playing hopscotch through a contract is that, like hopscotch, it can be fun. Well, less unfun at least.
And that’s not nothing. A big block of contractual clauses can cause procrastination and reviewing fatigue. But chipping away at the same contract bit by bit — starting with shorter and less contentious clauses, for instance, then graduating to thornier ones — can make the task more manageable.
Beginning with “boilerplate” terms also counters a common tendency to, intentionally or not, scrutinize those provisions less.
MAKE A MAP
One objection to taking the roundabout route through contracts is that it’s easier to lose one’s way. Especially if one reviews the contract in multiple sittings, it might seem hard to recall which clauses have been reviewed and which haven’t.
A simple checklist solves that problem. Before reading through the contract, the attorney should list the numbered provisions in a document or spreadsheet; then, as they review each provision, tick it off.
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It’s a small extra step, but it also has the advantage of making the reviewer page through the contract before digging into it.
And who doesn’t love the satisfaction of checking off items as done?
CONCLUSION
Most lawyers are constitutionally drawn to the straight and narrow path. But that approach isn’t the best way to review contracts. The detours are worth it. By taking the sideroads, you’ll see things you’d otherwise miss.
Chris Wlach is the General Counsel of Huge, a design and experience agency owned by the Interpublic Group of Companies, Inc. Before moving in-house he focused on complex commercial litigation at Arnold & Porter. He is a Certified Information Privacy Professional (CIPP/US) through the International Association of Privacy Professionals. He also chairs the board of HEART, a humane education nonprofit. He can be reached at cwlach@gmail.com
LEGAL OPERATIONS
Why Your Org Needs to Craft a Comprehensive GenAI Policy Now
By LEONARD DIETZEN
The rapid advancement of generative artificial intelligence technologies has revolutionized various industries by automating complex tasks, creating content, and enhancing decisionmaking processes. However, it also poses significant business risks and ethical dilemmas. Because this technology is so easy to use and exploding in capabilities, it is crucial that companies establish a comprehensive GenAI policy.
IMPORTANCE OF ADOPTING A GenAI POLICY
There are many reasons organizations should adopt a GenAI policy Some open platforms can subject companies to the loss of trade secrets or confidential data. Others can expose an organization to cybersecurity risks. A policy can help prevent many unintended potential ethical, legal, quality, and security issues and inform employees about which uses are permitted.
ETHICAL, COMPLIANCE, AND LEGAL CONSIDERATIONS
A well-defined policy ensures that AI-generated content aligns with the company’s ethical standards and societal values. Employees need to know whether the large language models have been trained on data that may result in misleading, biased,
or offensive answers. For example, basing hiring decisions on GenAI alone can lead to biased outcomes, potentially subjecting the company to discrimination claims.
A GenAI policy helps mitigate legal risks by setting clear guidelines for AI use. Management should stay current on all new regulations and industry guidelines governing AI products. Companies doing business internationally should be aware that the United Kingdom, Australia, Canada, the European Union, and others are developing regulations or frameworks that govern the use of AI. The emphasis will be on ensuring AI is used in a way that is safe, transparent, and respectful of individual rights.
QUALITY CONTROL
AI-generated content might lack the quality and accuracy of humanproduced work. An AI policy ensures that mechanisms are in place to review and verify the output, thus maintaining the company’s reputation for high-quality products and services. Every byproduct resulting from the use of AI should be reviewed for accuracy.
SECURITY AND PRIVACY
A policy should outline measures to protect data privacy and secure AI systems from cyber threats. Many free AI products train their large
language model computers to evolve with every use, so information used in prompts is not private.
KEY COMPONENTS OF A GenAI POLICY
The essential components of any AI policy will state its overall objectives and scope while addressing the following:
• Purpose and scope. Define the policy objectives and the scope of its application within the company. Specify which departments and processes the policy covers. State whether the policy covers every employee.
• Ethical guidelines: Establish ethical standards for AI usage, including fairness, transparency, and accountability. Include provisions to prevent bias and ensure inclusivity in AI-generated content. If industry ethical standards regulate the use of your data, place a link to the standards in your policy.
• Compliance and legal requirements: Detail the legal standards and regulations the company and its employees must adhere to. As many federal agencies are issuing AI best practices, you should incorporate them into your policy if they impact your business activities. Outlining procedures for
staying updated with changing US and international laws and ensuring compliance is essential.
• Quality assurance: Implement review processes for AI-generated content. Specify criteria for accuracy, reliability, and relevance, and assign responsibilities for quality control. Identify key personnel your employees should contact if they have any questions about the policy.
• Data privacy and security: Define protocols for safeguarding data and securing AI systems. Include guidelines for data handling, storage, and access controls. Identify key personnel who should be notified should there be a breach.
THE SECRETS OF IMPLEMENTATION
The secrets to an effective implementation include engaging stakeholders, communicating with employees, and evaluating AI policy usage.
• Stakeholder engagement. Involve key stakeholders from various departments when developing the policy. Form an AI task force and involve department heads to get buy-in for smooth implementation.
• Clear communication. Communicate the policy clearly and consistently across the organization. Use multiple channels to ensure all employees are aware of the policy and its importance. Employees must understand proper and improper AI uses.
• Monitoring and evaluation. Establish mechanisms for monitoring AI usage and evaluating the policy’s effectiveness. Regular audits and feedback loops can help identify areas for improvement.
• Continuous improvement. As AI technologies and regulatory landscapes are continually evolving, update the policy regularly to reflect new developments and emerging best practices.
ESSENTIAL TIPS FOR SUSTAINED SUCCESS
An AI policy does not end with implementation. A company must continuously monitor and update the policy to ensure its relevance and effectiveness.
• Be transparent: Always disclose when content is AI-generated. Ensure users understand the role of AI in creating or modifying content.
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• Audit outputs for bias: Be vigilant about potential biases in AI-generated outputs. Regularly review and audit AI systems to ensure they produce fair and unbiased results.
• Ensure confidentiality: Handle sensitive information with care. Follow data privacy protocols to prevent unauthorized access or leaks of confidential data. Coordinate AI usage and compliance with the company’s cybersecurity team.
• Be ethical: Use AI tools responsibly and ethically. Do not use AI to create misleading, harmful, or offensive content.
• Be accountable: Take responsibility for AI-generated content. Be prepared to address any issues or concerns that arise from its use.
The time for a well-crafted GenAI policy is now. It is essential for companies to harness the benefits of AI while mitigating its risks. By defining clear guidelines, ensuring compliance, and promoting ethical AI usage, companies can foster a responsible and innovative AI-driven environment.
Leonard Dietzen is a partner in RumbergerKirk’s Tallahassee, Florida, office. He focuses his practice on all aspects of employment law for both private and public-sector employers, with a particular focus on representing school boards. He can be reached at ldietzen@rumberger.com
Anticipating Class-Action Litigation: A Playbook for In-House Counsel
By STEPHEN CAREY AND CORRI HOPKINS
Over the past several years, class action litigation has been on the rise. Our law firm alone has seen a significant increase in the number of class actions brought against our corporate clients. And few industries have been immune — banking, healthcare, insurance and technology have all felt the brunt of these increases. While class actions span across industries, they also hit a wide range of claims, including employment, data privacy, chemicals in product formation and securities.
As class-action litigation continues to rise, there are key things in-house counsel should know before their business is served with a complaint, as well as issues they should know about quickly after they have been served. Here’s a breakdown of some important strategies to navigate these often challenging hurdles.
THE BASICS: WHAT IS A CLASS ACTION (AND WHY IS IT A BIG DEAL?)
In a class action, a plaintiff will bring a case on behalf of “all those similarly
situated.” This is called the “putative class” and can lead to hundreds, thousands or even tens of thousands of potential class members. More potential claimants, of course, means greater potential exposure — a $500 claim, for example, can mushroom into a $50 million claim if there are 100,000 people in the putative class.
Class actions often also mean more complex and voluminous discoveries. In one recent case, for example, our client produced hundreds of thousands of documents — and that case was by no means the exception.
Some class actions can pertain to core business practices, and preparing the defense often requires the assistance of employees across a company. This can strain business operations as employees are pulled away from their work, especially in preparing for depositions, discovery and trial. Depending on the scope of the litigation, depositions could take place around the country.
The legal issues around class actions are often nuanced, with subtle (and sometimes large) differences across jurisdictions. The procedures — potential legal landmines — differ from typical litigation. Companies therefore can benefit from the advice of experienced counsel who know how to navigate these strange waters.
THE FORUM: WHY THE RIGHT FORUM OR VENUE MAY BE CRITICAL
One of the critical first steps your company will face after it’s been served with a class action complaint is to decide the forum in which the case will be litigated.
Time is of the essence here. If the case has been filed in state court but federal court is your goal, you’ve got just 30 days from the date you were served to remove. No extensions, no exceptions.
There is a lot to consider and much to do in that brief window.
Consulting with experienced class action litigators — and fast — can help your company make key decisions within the deadline.
The legal issues around class actions are often nuanced, with subtle (and sometimes large) differences across jurisdictions.
And the decision may matter. Venue can make a big difference when it comes to defending the class action. Federal class-action case law is more developed than it is in many states, and federal trial judges typically have more experience with class actions than their state counterparts. Federal courts may also provide more continuity and structure compared to state courts. At the federal level, for example, parties will typically work with one judge from start to finish — there’s no guarantee of that in many state courts.
Thanks to the Class Action Fairness Act, federal courts have broader subject matter jurisdiction over class actions. Congress passed the act to, among other things, cut down on what’s known as forum shopping by plaintiffs’ counsel who sometimes view state courts as friendlier. But different rules lead to different issues, which is one reason why consulting experienced outside counsel may be invaluable.
TRICKS OF THE TRADE: STRATEGIES TO USE AND PITFALLS TO AVOID
For companies, there are a number of strategies that can help navigate what can be a pressure-filled environment when a class action is filed.
One strategy is to focus on the individual plaintiff. Until a class is certified, the named plaintiff is the only party on the plaintiff’s side, and that individual may have unique issues that will make it difficult for the case to proceed as a class action. Thus, it is often important to conduct discovery on the named plaintiff — you never know what you may learn.
Another strategy is to leverage arbitration agreements and classaction waivers. An enforceable arbitration clause could end up defeating an individual’s ability to represent a class. And federal court decisions denying motions to compel arbitration are typically appealable, meaning even an adverse decision on motions to compel arbitration could slow down the litigation.
One pitfall to avoid is remembering to treat corporate affiliates as separate entities. It can often be to the plaintiff’s advantage to ignore formalities and lump various entities together. Companies should take care to maintain critical distinctions
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among affiliates. Little things like logos on contracts and marketing materials can make a difference.
FINAL TAKEAWAYS
Class-action litigation is on the rise, and in-house counsel need to know how navigate them. But they don’t have to go it alone. Experienced outside counsel can provide crucial strategic advice and know-how. But companies also need to act fast — the 30-day clock may be ticking.
Stephen Carey is a partner at Parker Poe in Raleigh, North Carolina, and leads the firm’s Appellate Team. He focuses his practice on complex litigation and appeals on behalf of companies, financial institutions, local governments, healthcare providers and universities.
Corri Hopkins is an associate in Parker Poe’s Raleigh and Charlotte, North Carolina offices. She represents companies and individuals in complex corporate litigation, including class actions and cases involving unfair and deceptive trade practices, fraud and other business torts, trade secret misappropriation, breach of contract, noncompete violations and corporate governance.
Analyzing the Supreme Court Ruling on the Time Bar and Copyright Infringement Claims
By KELLEY S. GORDON AND GREGORY J. CHINLUND
The United States Supreme Court recently ruled that there is no time bar to the recovery of monetary damages for copyright infringement claims. In other words, the Copyright Act entitles a copyright owner to obtain monetary relief for any infringement claim brought within the three-year statute of limitations, no matter when the infringement occurred. The decision in Warner Chappell Music, Inc. v. Nealy opens
the door to higher damages awards for copyright plaintiffs and increases possible exposure to would-be defendants.
Although the Supreme Court issued its ruling in the summer of 2024, the actions giving rise to the dispute between Sherman Nealy and Warner Chappell Music, Inc., date back to 2008 — 10 years before Nealy sued Warner Chappell. Nealy had a brief joint music venture with third-party Tony Butler in the 1980s
when the pair recorded and released an album and various singles. The group parted ways in the 1980s, and eventually Nealy spent time in prison for drug-related charges (1989-2008 and 2012-2015).
While Nealy was in prison, Butler licensed works from the pair’s music venture to Warner Chappell, apparently without Nealy’s knowledge or approval. Importantly, a single co-owner of a copyright cannot unilaterally grant an exclusive license to
the work without the consent of all other co-owners.
Warner Chappell used the works licensed from Butler in various subsequent popular recordings by groups like Flo Rida, the Black Eyed Peas, and Kid Sister. Nealy initiated his lawsuit against Warner Chappell in 2018, approximately two years after Nealy claimed to have first discovered Warner Chappell’s conduct.
THE “DISCOVERY RULE” IMPACT
In reaching its decision, the Supreme Court carefully predicated its ruling on the assumption that the plaintiff’s claim was timely under the “discovery rule” currently followed by all 11 of the United States’ circuit courts. In the Seventh Circuit, for example, the discovery rule triggers the Copyright Act’s three-year
The decision in Warner Chappell Music, Inc. v. Nealy opens the door to higher damages awards for copyright plaintiffs and increases possible exposure to would-be defendants.
statute of limitations only when the plaintiff learns or reasonably should have learned of infringement.
The alternative to the discovery rule is the so-called injury or accrual rule, where claims accrue when the infringement occurs, regardless of when a plaintiff learns of it. In their
dissent, Justices Neil M. Gorsuch, Clarence Thomas, and Samuel A. Alito Jr. criticized the majority for failing to address what the justices saw as the predicate question, that is, whether the Copyright Act “has room for” recognition of the discovery rule, a question the dissent answered in the negative.
Here, however, Warner Chappell did not challenge that the discovery rule governed the timeliness of Nealy’s claims but argued instead that recovery of damages or profits was limited to the three years immediately preceding the lawsuit.
The Supreme Court’s majority opinion rejected Warner Chappell’s call to apply a “judicially invented damages limit” not present in the Copyright Act that would otherwise seemingly undermine the preservation of damages provided by the discovery rule. The majority opinion clarified that the Petrella v. MetroGoldwyn-Mayer Inc. decision, upon which Warner Chappell relied to support its position, did not enunciate a three-year damages cap for copyright infringement. Instead, Nealy could seek decades’ worth of damages.
GUIDANCE FOR POTENTIAL
COPYRIGHT INFRINGEMENT CLAIMS
Importantly, the Supreme Court majority opinion explicitly did not opine on whether the discovery rule or an accrual rule properly governs the timeliness of a copyright infringement claims. The decision serves as a reminder of practical guidance for potential infringement claimants and defendants:
• Ensure written permission from all copyright holders before
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accepting/granting an exclusive license.
• Ask to see pertinent agreement(s) or, at a minimum, for a representation and warranty as to the nature of copyright ownership before utilizing third-party content.
• Include the appropriate material representation, indemnification, and/or other trigger provisions to safeguard agreements should it be discovered that not all required permission was secured.
• If third-party unauthorized use is discovered, document the use swiftly with screenshots, downloads, and internal notes.
• Seek copyright registrations early and often for content, as it is a predicate to initiating a claim for infringement in District Court. It is a relatively inexpensive process and provides the option to seek statutory damages and attorneys’ fees so long as infringement begins after registration or within three months of publication.
Kelley S. Gordon and Gregory J. Chinlund are partners at the Chicago-based intellectual property law firm Marshall Gerstein. They work with companies worldwide to develop and protect their copyrights and trademarks in the U.S. and internationally. They can be reached at kgordon@marshallip.com and gchinlund@marshallip.com.
How Companies Should Mitigate the Risks of Digital Accessibility Litigation
By ALLISON KRATZ RISK MANAGEMENT
Digital accessibility is emerging as a prominent risk in the compliance landscape. While the Americans with Disabilities Act (ADA) has long addressed accessibility, companies are now placing greater emphasis on applying these requirements to websites and technology. This activity coincides with a spike in digital accessibility litigation and demand letters.
It’s important that in-house counsel learn about the legal landscape
and accessibility requirements under the law.
THE LEGAL BASIS FOR LAWSUITS
The ADA provides individuals with disabilities the right to access public places of accommodation (any business open to the public). While originally meant to address physical locations, the Department of Justice’s (DOJ) letter of 2018 established that its original language also
applies to the websites of places of public accommodation. However, the letter did not indicate how to make websites comply with the ADA.
In 2022, the DOJ issued further guidance and cited the Web Content Accessibility Guidelines (WCAG) for private entities and Section 508 guidelines for government and public services as the standard for website accessibility.
The WCAG is a set of guidelines developed and published by the World Wide Web Consortium, an organization whose mission is to “develop open standards for an interoperable web to meet requirements for accessibility, internationalization, privacy, and security.” The current version, WCAG 2.2, outlines success criteria for websites to create an accessible experience for those using assistive technologies.
For example, the guidelines require that images include descriptive alt text to assist users with visual impairments using screen readers and they provide specific requirements for sufficient color contrast between text and background to ensure readability for individuals with color vision deficiencies. While the DOJ has adopted the guidelines, federal law has not codified it as a standard for all businesses with an online presence.
Due to the lack of clarity, there has been an uptick in federal cases filed over digital accessibility. Plaintiffs are alleging a violation of the ADA due to inaccessible content or coding on a business’s website, often citing the WCAG guidelines. The absence of a clear federal law has led to a fractured legal landscape on digital accessibility, relying primarily on federal district court decisions.
DIGITAL ACCESSIBILITY LITIGATION LANDSCAPE
Since 2018, we have seen a steady increase in the number of cases filed in state and federal courts over digital accessibility. In 2023 alone, there were over 4,000 cases filed and hundreds more demand letters. The vast majority of cases are currently filed in state and federal courts in New York and Florida due to precedent and state laws favorable to plaintiffs, with Pennsylvania and California trailing behind.
These cases will almost always begin with a demand letter sent by one of a handful of plaintiff firms. The demand letters usually consist of a drafted complaint with a templated letter alleging violations of the ADA and several state laws (in California, the Unruh Civil Rights Law and in New York, the NY State Human Rights Law, the NYC Human Rights Law, and the NY State Civil Rights Law). The drafted complaint highlights errors seen on an automated testing tool or issues with multimedia content on the website.
RECENT LEGISLATION DEVELOPMENTS
In recent years, several bills related to digital accessibility have been introduced in the US Congress. Introduced in the 118th Congress
alone were the Websites and Software Applications Accessibility Act of 2023, the Communications, Video, and Technology Accessibility Act of 2023, the ACCESS Act, and the TLDR Act.
While there are current digital accessibility laws and pending legislation in several states, the requirements mostly apply to public and governmental entities. However, a bill out of California, Assembly Bill 1757, with implications for public and private businesses, has gained significant traction. Although stalled for this year, AB 1757 is expected to be picked up again in the 2025 legislative session.
MITIGATING THE RISK
One common factor among demand letters, cases, and pending legislation is that they all refer to the industry standard for digital accessibility — the WCAG.
Using the WCAG 2.2 guidelines, here are some tips to minimize your company’s exposure to digital accessibility litigation and other risks:
• Conduct an accessibility audit of your website. Keep in mind that you may have several websites to test, such as your e-commerce website, corporate website, and investor relations website. You should contact an accessibility professional or start with a free tool like Axe by Deque
• Conduct a vendor audit. Even if you outsource to a single website vendor, several vendors can be part of your website. To fix the barriers, you will need to go to the source of the code, which may not be the obvious vendor.
• Understand what laws your company is subject to. As your website
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may be available globally, you may be subject to jurisdiction in states or countries in which you may not physically operate.
• Discuss accessibility violations with your website vendor(s). Reach out to your website vendor with your accessibility findings and ask whether they can remediate the barriers.
• Make a plan to remediate any accessibility barriers present and schedule ongoing testing. Many accessibility barriers can occur even after you have remediated your findings. Websites that are frequently updated are likely to have accessibility barriers. Create a plan to test and remediate any barriers regularly.
Looking at your website through the lens of digital accessibilityis a great, while also staying abreast of changes in the legal landscape.
Allison Kratz has served as General Counsel at Equisolve, Inc., since 2023. As a Certified Professional in Accessibility Core Competencies (CPACC), she is dedicated to advancing internet accessibility and stays actively engaged with digital accessibility litigation and legislation. Kratz is licensed to practice law in Pennsylvania, Florida, and Washington D.C. and can be reached at allison@equisolve.com
Unlocking the Power of Generative AI in Legal Contract Management
Join us to discover how the latest advancements in legal technology can help general counsel, corporate counsel, paralegals, and other legal professionals to:
• automate contract drafting with AI and auto-redlining
• generate clauses with a solution built on OpenAI
• answer relevant questions about compliance and more with a user-friendly chatbot
• proactively measure contract language, positioning, and associated risk
• consolidate contract negotiation and approvals
• improve compliance
• enhance risk management
• simplify searching and reporting
• measure key contract management KPIs
Data Deletion Jeopardy: Minimizing Risk in a Data-Driven World
Join us as we play through real-world scenarios and best practices to enhance your data deletion strategies and ensure regulatory compliance. Key takeaways:
• Best Practices and Strategies: Learn industry insights and practical approaches for operationalizing the data minimization principle and effectively deleting unnecessary data.
• Case Studies and Real-World Applications: Review examples from various sectors to see how organizations have successfully implemented data minimization and deletion practices.
