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Product Liability: An Update from the PLC

“This cert petition writes itself”: In CPSC Case, Fifth Circuit Invites Supreme Court to Revisit Humphrey’s Executor, Presidential Officer-Removal Powers

By Mike Gentine

A case challenging the fundamental structure of the U.S. Consumer Product Safety Commission (CPSC) – and, by extension, a swath of other independent federal agencies – may be headed to the Supreme Court following an appellate court’s ruling that that court itself suggested was “nigh impossible to square with the Supreme Court’s current separation-of-powers sentiment.” Consumers’ Research v. Consumer Prod. Safety Comm’n (Consumers’ Research II), No. 22-40328, 7 (5th Cir., Apr. 16, 2024). In its latest decision in Consumers’ Research, the U.S. Fifth Circuit Court of Appeals declined to rehear or hear en banc that court’s panel decision that held that the CPSC’s structure is constitutional under long-standing Supreme Court’s precedent regarding protecting agency heads from at-will presidential removal. In doing so, however, the Fifth Circuit signaled that that precedent is at odds with the Court’s more recent decisions.

Case History

CPSC Structure

Established by the Consumer Product Safety Act (CPSA), 15 U.S.C. §§ 2051-90, CPSC is headed by a five-seat Commission whose members are appointed by the President (with the advise and consent of the Senate) but who “may be removed by the President for neglect of duty or malfeasance in office but for no other cause.” 15 U.S.C. § 2053(a). (Note that the CPSA is silent as to removal from the position of Chairman, and this silence has generally been interpreted as meaning that the President can take away the chairmanship, but the removed Chair nonetheless remains a commissioner.) The commissioners serve nominally seven-year terms, but those terms are fixed to the calendar rather than a commissioner’s date of appointment, such that a commissioner can take office with much less than seven years remaining on their term (for example, the newest member, Commissioner Douglas Dziak, took office on March 25, 2024, but his term expires on October 27, 2024).

District Decision

In 2022, a federal district court ruled that insulating CPSC’s commissioners from at-will removal was unconstitutional. Consumers’ Research v. Consumer Prod. Safety Comm’n (Consumers’ Research 1), 592 F.Supp.3d 568 (2022). The district court concluded that Humphrey’s Executor v. United States, 295 U.S. 602 (1935) – a nearly century-old seminal case that held that similar removal protections afforded members of the Federal Trade Commission (FTC) did not unconstitutionally intrude upon the president’s executive authority because the FTC “is an administrative body created by Congress . . . as a legislative or judicial aid [and not] in any proper sense . . . an arm or an eye of the executive,” Consumers’ Research 1, 592 F.Supp.3d at 582 (internal citations omitted) – did not apply to CPSC because “the Commission exercises substantial executive power and therefore does not fall within the Humphrey’s Executor exception.” Consumers’ Research 1, 592 F.Supp.3d at 583-84. The district court then held that, with Humphrey’s Executor inapplicable, more recent Supreme Court precedent dictated that “the restriction on presidential removal [in the CPSA] violates Article II of the U.S. Constitution.” Consumers’ Research 1, 592 F.Supp.3d at 586, quoting Seila L. L.L.C. v. CFPB, 140 S. Ct. 2183 (2020), citing Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477 (2010).

Circuit Panel Decision

On the agency’s appeal, a divided panel of the Fifth Circuit reversed the district court. Consumers’ Research v. Consumer Prod. Safety Comm’n (Consumers’ Research I), 91 F.4th 342 (5th Cir. 2024). For the majority, Judge Don Willett reasoned that, “as in Free Enterprise Fund, the Supreme Court in Seila Law left the Humphrey’s Executor exception ‘in place’” and that CPSC “is structurally identical to the agency that the Supreme Court deemed constitutional in Humphrey’s [Executor].” Consumers’ Research I, 91 F.4th at 345. Accordingly, the majority held that, “[a]s middle-management circuit judges, we must follow binding precedent, even if that precedent strikes us as out of step with prevailing Supreme Court sentiment,” and thus that the circuit court had no choice but to overrule the district court hold CPSC’s structure constitutional. Consumers’ Research I, 91 F. 4th at 346.

The dissent, echoing the district court, concluded that Seila Law “translat[ed]” the Humphrey’s Executor holding in a manner that suggested CPSC should fall outside of Humphrey’s Executor because the Commissioners “also exercise executive power.” Consumers’ Research I, 91 F. 4th at 358 (Jones, J. dissenting). The majority rejected this interpretation, noting that the agency Seila Law considered – the Consumer Financial Protection Bureau (CFPB) – was distinct from CPSC in several respects, including that it was a single-administrator agency, that it derived funding from sources other than appropriations, and that it had a novel structure. Consumers’ Research I, 91 F. 4th at 354-55. Further, because CPSC’s commissioners terms are staggered, each president will likely have at least one “opportunity to shape [the Commission’s] leadership and thereby influence its activities,” Id. at 354-55, even without the ability to create an opportunity via at-will removal.

One point on which the Fifth Circuit panel’s majority and dissent agreed was that the tension between Humphrey’s Executor and with cases like Seila Law and Free Enterprise Fund could be resolved only by the Supreme Court. “The logic of Humphrey’s [Executor] may have been overtaken, but the decision has not been overruled–at least not yet.” Consumers’ Research I, 91 F. 4th at 346. “The Supreme Court has created uncertainty that only it can ultimately alleviate.” 91 F. 4th at 356 (Jones, J. dissenting).

Circuit Rehearing Decision

Following the panel decision, the plaintiffs petitioned for rehearing en banc, which the Fifth Circuit addressed as both an en banc petition and a panel rehearing petition, rejecting both. Consumers’ Research II, No. 22-40328, at 1. The court rejected the petitions per curiam, but Judge Willett, writing in concurrence, reiterated his view from the panel case, that “The New Deal-era precedent that lets Congress restrict the President’s ability to remove members of multiheaded agencies, what we now shorthand as Humphrey’s Executor, is still on the books,” and “[t]hus, when we are confronted with a constitutional challenge against an agency (the CPSC) that everyone agrees is structurally identical to the one in Humphrey’s Executor (the FTC), we cannot break new constitutional ground. Consumers’ Research II, No. 2240328 at 4-5.

The petition for en banc rehearing was denied by a slim 9-8 vote, Consumers’ Research II, No. 22-40328, at 1, and the eight judges who voted to rehear the case agreed that “inferior courts must follow binding Supreme Court precedent,” id. at 21 (Oldham, J. dissenting), but concluded that the panel majority had misinterpreted and misapplied those precedents. Id. “[T]he panel majority distorted Seila Law, then stretched the holding of Humphrey’s Executor, then halfheartedly invoked an irrelevant decision of this court, all to protect the Commissioners from the President’s constitutional power to remove them from office.” Id. at 19. Judge Ho, who joined the group dissent, also wrote separately to note that “only a tiny percentage of Executive Branch employees are subject to Presidential removal” and to lament that “[t]here is no accountability to the people when so much of our government is so deeply insulated from those we elect.” Id. at 8 (Ho, J. dissenting).

Judge Willett acknowledged the power of many of the dissent’s arguments, writing “I find myself mostly nodding in agreement,” id. at 5, and that the reader should “[c]ount [Willett] among those skeptical of Humphrey’s Executor, which seems nigh impossible to square with the Supreme Court’s current separation-of-powers sentiment.” Id. at 6-7. Nonetheless Judge Willett wrote, the Fifth Circuit was bound by precedent, and “sentiment is not precedent.” Id. at 7. But Judge Willett did identify the body that can resolve the tension: “[W]hile an en banc petition cannot push reset on Humphrey’s Executor a certiorari petition can. And this cert petition writes itself.” Id.

Looking Ahead

With such stark division between members of a federal circuit court on how to reconcile the Supreme Court’s current view of separation-of-powers questions with that Court’s longstanding precedent, the opportunity for review of that precedent seems ripe, particularly when the disagreement centers on bedrock concepts like electoral accountability. Moreover, the constitutional tenability of for-cause removal protections for multi-member agencies extends well beyond CPSC. As the Fifth Circuit’s panel majority noted, if the structure at issue in Humphrey’s Executor were barred, “then the FCC, the NSF, the SBA, and dozens of other agencies would all be unconstitutionally structured.” Consumers’ Research I, 91 F. 4th at 352.

As of the time of this writing, the Consumers’ Research plaintiffs have not yet asked the Supreme Court to review the Fifth Circuit’s ruling, but the scope of the question, its fundamental nature, and the seeming receptibility of the current Court may incline them to do so, particularly as, if accurate, Judge Willett’s observation that “this cert petition writes itself” should cut down on the workload. If the plaintiffs do seek cert and the Supreme Court does take up the case, stakeholders across the federal administrative state – including those with business before CPSC – should pay close attention.

Gentine_Mike_Website_330x378 (002)Mike Gentine, a former senior counsel with the US Consumer Product Safety Commission (CPSC), advises manufacturers, retailers and other commercial clients on product safety and consumer protection issues. He is especially skilled with legal, regulatory, enforcement, and penalty matters before various agencies, including the CPSC and the National Highway Traffic Safety Administration (NHTSA), and policy advancement at the state and federal levels. Mr. Gentine also has extensive product recall experience in multiple international jurisdictions and across agency proceedings, stakeholder organizations and trade associations.

Interested in joining the Product Liability Committee? Click here for more information.

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Insurance Law

Insurance Law: Covered Events

Leadership Note: Advertising Injury and Personal Injury SLG

By Daniel I. Graham, Jr.

Intellectual property infringement. Violations of privacy. Business disparagement. Malicious prosecution. Every day, courts nationwide are evaluating the types of exposures that “personal and advertising injury” liability coverage can encompass; and in doing so, they are developing a body of case law that is ever-evolving and with outcomes that can vary from state to state.

The Advertising Injury and Personal Injury Subcommittee brings together practitioners from across the country to share their insights and experience on “personal and advertising injury” matters. And we offer our members numerous opportunities to get involved. We network, author featured articles in various DRI publications, including The Brief Case and For the Defense, and speak at DRI seminars, including DRI’s Insurance Coverage and Claims Institute and Insurance Coverage and Practice Symposium.

If you are interested in “personal and advertising injury” coverage, and are looking for opportunities to get involved with DRI, I invite you to contact me at for more information. And if our subcommittee isn’t for you, please know that the Insurance Law Committee is a fantastic committee that offers plenty of other SLGs where members can learn, contribute, and network. Join us!

ProfileImageDaniel I. Graham, Jr. of Nicolaides Fink Thorpe Michaelides Sullivan is the chair of the Advertising Injury SLG.

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The Future of Insurance: Navigating Risks in the Era of Artificial Intelligence

By Brian Bassett and Danielle Kegley

Nothing creates more intrigue and interest currently than the rise of artificial intelligence. What used to be fictitious plotlines in movies like Terminator 2 have now become storylines splashed across media around the globe. It has been labeled a potential danger to society (Warren Buffet compared it to the invention of nuclear weapons), as well as a groundbreaking tool that will change the world forever (Jamie Dimon likened AI to the printing press). It has been praised as a tool that can solve medical mysteries, while at the same time it has created concern of human extinction. It could be both a panacea and plague.

The divergence of views on AI are based, at least in part, on a lack of understanding of the technology, but more importantly a fear for how it will develop and how it will be used. Industries of all types and sizes are now facing risks they never imagined whether they use AI or not. AI risk and exposure is therefore top of mind for the legal and insurance industries.

This article explores the explosive growth of AI, provides illustrations of the risk it creates and corresponding legal exposures, and addresses potential insurance coverage implications arising from the technology.

The Beginning of AI

Artificial intelligence first made its appearance in the 1950s, when researchers developed a program that was designed to imitate a human’s ability to problem solve. Following that program, “traditional” artificial intelligence emerged, which is capable of responding to a particular set of inputs, learning from the data, and making predictions based on that data. A subset of this “traditional” artificial intelligence developed, known as “generative” artificial intelligence, which is capable of generating new content such as text, images, and videos from large amounts of data.

With the launch of OpenAI’s ChatGPT in November 2022, many technology companies pushed to further develop their own generative artificial intelligence software to capitalize on the surging market. Consequently, within the last few years, the use of AI has grown at an impressive rate with no end in sight. According to a report by Grand View Research, in 2023, the global artificial intelligence market size was estimated at $196.63 billion and is predicted to grow at a compound annual growth rate of 36.6% from 2024 and 2030, with its revenue forecasted to be $1,811.75 billion in 2030. Grand View Research. (2024). Artificial Intelligence Market Size, Share, Growth Report 2024-2030.

Artificial intelligence has become increasingly useful in various industries to analyze huge volumes of data which would otherwise be near impossible to process. In order to lower costs and increase efficiency, many industries have integrated AI into their businesses to complete a variety of tasks such as content generation, quality control, automation, data analysis, fraud detection, predictive analytics, and chatbots.

Industries in which artificial intelligence is particularly prominent include the finance sector, healthcare sector, and digital spaces. Among other uses, in the financial sector AI is utilized to detect changes in a person's spending habits to catch fraud, to predict and assess borrowers’ risk levels, and automate trading. The healthcare sector uses artificial intelligence to aid in administrative tasks, assist in making medical diagnoses, and even automate surgeries. In digital spaces, companies are using artificial intelligence to create advertisements and marketing campaigns and analyze consumer behavior to better target their audience.

And this is just the tip of the iceberg. In 2023, the professional services firm, KPMG, reported that of 400 U.S. CEOs surveyed, 72% reported that generative AI is a top investment priority. According to estimates by Goldman Sachs Research, by 2025, AI investment could reach $100 billion in the U.S. and $200 billion globally. The flood of investments to companies that are developing the technology is bound to expand the manner in which consumers and businesses use AI.

The Use of Artificial Intelligence Poses Diverse Risks.

With AI’s entrance into the market came numerous legal concerns about how it might be used, including copyright infringement, data security, and discriminatory practices. In order for artificial intelligence to perform effectively, the software must be “trained” using large amounts of information that help it “learn.” From its training, however, the AI software can develop bias which may result in discriminatory or offensive output, content may be created based on protected intellectual property, or a person’s private information could be used to train the software. Lawsuits by impacted companies and individuals have been filed based on these incidents, and that legal liability is likely to expand and evolve as the technology becomes more widespread.

Privacy Risks To Individuals

Safeguarding the privacy interests of individuals has become paramount in the age of cyber breaches and class action claims based on unauthorized use of or access to personal and medical information. It is therefore reasonable to expect that the use of artificial intelligence will increase claims arising out of data security and privacy breaches. Artificial intelligence relies on volumes of data, which can include private or protected data. Where AI software has access to protected personal information for training purposes, or where that information is input into AI software to generate consumer spending practices or otherwise, there is an increased risk that personal information falls into the wrong hands. Already, there have been lawsuits filed alleging that companies using artificial intelligence have stolen private and personal information from millions of people in order to train their generative AI tools. See P.M. v. OpenAI LP, No. 3:23-cv-3199 (N.D. Cal. 2023); J.L. v. Alphabet Inc., No. 3:23-cv-03440 (N.D. Cal. 2023).

Liability Risks To Companies

Companies that access or use private or protected data in an unauthorized way can lead to legal liability and reputational harm. While the legal landscape is just starting to develop, intellectual property claims have also been part of the first wave of AI suits facing companies. Because generative AI technology generally relies on volumes of data, it is certainly foreseeable that such data may include copyrighted or patented material (regardless of whether its inclusion is inadvertent). Lawsuits have been filed relating to whether generative AI that is allegedly trained on copyrighted works constitutes actionable infringement. See Kadrey v. Meta Platforms, No. 3:23-cv-03417 (N.D. Cal. 2023); Thomson Reuters Enterprise Centre GMBH, et al. v. Ross Intelligence Inc., No. 1:20-cv-613-SB (D. Del. 2020).

Directors and officers of companies also face potential exposure arising out of AI. The C-suite must remain aware of the regulatory landscape governing AI and potential vulnerabilities flowing from the use of AI. When implementing AI technology into their businesses, boards need to be aware of the risks that accompany the efficiencies created by AI. Public company directors should accurately disclose the use of AI in their business, or potentially face SEC enforcement actions or shareholder claims arising out of misrepresentations to investors (commonly referred to as “AI washing”). Directors should properly vet how AI impacts their business, which may include seeking legal counsel to guide the company on how to best use AI tools while mitigating risk.

Companies also face potential exposure to their employees. AI technology can create an algorithmic bias in hiring practices, where the artificial intelligence algorithms used may enhance biases existing in its training data. For instance, in EEOC v. ITutor Group, Inc., et al., No. 1:22-cv-02565 (E.D. N.Y. 2022), the defendant was alleged to have used an artificial intelligence tool to automatically reject applicants because of their age. The ITutor lawsuit ultimately settled, but it provides an example of the type of employment-related claims companies should expect if they use their artificial intelligence technology in a similar manner to eliminate a subset of individuals based on protected status.

Claims against companies based on the improper use of AI is not limited to technology companies. For example, insurance companies have been the subject of class action lawsuits, alleging the use of certain algorithms in their claims handling process to discriminate. See Huskey v. State Farm Fire & Casualty Ins. Co., No. 1:22-cv-07014 (N.D. Ill. 2022); Kisting-Leung v. Cigna Corporation, et al., No. 2:23-at-00689 (E.D. Cal. 2023). Companies may be subject to false advertising or misrepresentation claims if AI-generated content in advertisements is incorrect or misleading. In 2023, actress Scarlett Johansson took legal action against an artificial intelligence app called Lisa AI: 90s Yearbook & Avatar, following the company’s use of her likeness and voice to promote their app, suggesting Johansson was a spokesperson for the app. The Federal Trade Commission filed a lawsuit against Automators LLC for a money-making scheme which purported to use artificial intelligence to boost earnings for its customers’ e-commerce storefronts. A settlement was reached, in which Automators agreed to pay over $21 million. FTC v. Automators LLC, No. 23-cv-1444-BAS-LSC (S.D. Cal. 2023).

Risks To The Legal Industry

Vendors have started pitching law firms and their insurance company clients on how the use of AI might promote efficiency in legal research and writing, among other uses. In evaluating whether to take the plunge, firms are evaluating the return on investment on expensive technology. Questions remain about the ability to depend on the output from AI and whether it can be relied upon to provide an accurate answer to a legal question. Unique prompts from users might generate different results. Firms are also uncertain about how AI can be used in a profession that is still heavily dependent on the billable hour. Incorporating charges for the use of AI through flat fees or alternative fee arrangements could be an option, but there is no “one size fits all” solution.

The legal industry must be particularly wary of misrepresentations made by generative AI technology. For instance, generative AI can create erroneous content that lacks legal support or is based on fabricated sources. In Roberto Mata v. Avianca, Inc., No. 1:22-cv-01461-PKC (S.D. N.Y. 2022), an attorney was sanctioned for failing to review non-existent citations provided by ChatGPT, which were used in legal filings. As AI technology continues to develop and becomes more ubiquitous, the legal industry will need to evaluate how it fits within the services provided to clients.

Regulatory Enforcement

Accompanying the increased use of AI came an increase in proposed legislation regulating the technology. In California alone there have been more than 30 bills proposed to the California state legislature attempting to regulate the use of artificial intelligence. Pennsylvania has also recently joined Alaska, Connecticut, Illinois, New Hampshire, Nevada, Rhode Island, and Vermont in adopting a statute governing the use of AI by insurers based on the NAIC AI Model Act. In May 2024, Colorado became the first state to pass a comprehensive AI bill when the legislature passed the Colorado Artificial Intelligence Act. Although not yet signed into law, the legislation would prohibit the use of algorithmic discrimination. The bill does not create a private right of action but would be enforced by the Colorado Attorney General. Other states will undoubtedly enact laws to regulate the use of AI, and potentially create private causes of action for consumers harmed by companies that violate those rules.

At the federal level, companies have been put on notice that their artificial intelligence algorithms may be targeted. Federal agencies have expressly warned the public through a joint statement that there is no exemption for the use of AI under U.S. law and that algorithmic bias can be targeted in litigation and in the regulatory context. See “Joint Statement on Enforcement of Civil Rights, Fair Competition, Consumer Protection, and Equal Opportunity Laws in Automated Systems,” (last accessed May 6, 2024).

On the international stage, the European Parliament passed the Artificial Intelligence Act in March 2024. The Act governs all companies deploying or using AI in the EU and requires companies using AI to disclose or label content generated by the technology. Companies are also forced to abide by certain ethical standards, and the regulations proscribe the use of AI in generating facial recognition databases through scraping of facial images from internet sources.

Insurance Policies Responding to Claims Involving Artificial Intelligence

With the increased use of artificial intelligence and the concerns surrounding its use, insurance companies must consider how these risks will interact with traditional insurance policies and how they might be updated to account for such exposures. When cyber risk started to materialize in losses suffered by insureds, traditional insurance products that were not designed to cover cyber risk would respond to those claims (sometimes referred to as “silent cyber”). There is a similar concern about “silent AI” - policies that may not be tailored to explicitly cover AI risk, but fail to exclude it from the applicable coverage.

For instance, data security and privacy breaches are commonly handled under cyber risk policies. With the increased automation of processes mimicking threat actors, not only will the quantity of claims rise, but the diversity of cyber claims will increase. One insurer has attempted to clarify its cyber policies by adding an artificial intelligence endorsement, which “expands the definition of a security failure or data breach to include an AI security event, where artificial intelligence technology caused a failure of computer systems’ security” and “expands the trigger for a funds transfer fraud (FTF) event to include fraudulent instruction transmitted through the use of deepfakes or any other artificial intelligence technology.” “Coalition Adds New Affirmative Artificial Intelligence Endorsement to Cyber Insurance Policies,” (last accessed May 6, 2024).

Traditional E&O policies as well as technology E&O policies will likely be a source of coverage for professionals that are accused of improperly using AI. In the example discussed above where the law firm was accused of failing to confirm the sources identified by AI supported the position stated, that firm would likely be entitled to coverage under its professional liability policy in the absence of an AI exclusion. Technology companies would also rely on their E&O policies to respond to claims that they negligently used AI in providing technology services to their clients. In relation to copyright infringement claims, companies may find coverage within a media liability policy which covers claims relating to content creation, distribution, and publication.

Directors and officers will likely be able to rely on both public and private company D&O policies to cover claims that the directors and officers breached fiduciary duties in implementing AI technology or violated securities laws in making improper AI related disclosures.

Commercial general liability (CGL) insurance policies could potentially provide coverage for artificial intelligence-related claims, as they generally provide coverage for personal and advertising injuries. There is, however, generally a professional services exclusion found within CGL policies that could encompass AI related exposure depending on the manner in which the technology is used.

It is only natural that new technology like artificial intelligence poses risks to the insurance industry as it transforms and grows. Though a new technology is at issue, some of the risks created by AI have been seen before and therefore, may be covered by policies already in existence. Over time, insurers wary of covering AI related exposures may add exclusions to preclude coverage under these traditional insurance products. As insurers begin to exclude claims based on the use of AI, the market is likely to demand tailored policies and endorsements to provide the best protection for responding to claims involving AI.

Brian_Bassett_large2Danielle_Kegley_largeBrian Bassett and Danielle Kegley are partners in Traub Lieberman’s Chicago office. Brian and Danielle focus their practice on litigating and managing insurance coverage disputes involving several lines of insurance across jurisdictions nationwide. Brian is the Vice Chair of the Professional Liability SLG of the DRI Insurance Law Committee. The authors would like to thank Lauren Healy for her contributions to the research and drafting of the article.

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Young Lawyers: Raising the Bar

Networking in Nashville

By Casey Miller, Sam Heaney, and Trey Perdue

Make sure to pack your boots because the DRI YL committee is gearing up for the 2024 Young Lawyers Seminar in Nashville from June 12 to 14! The Networking and Activities subcommittee has planned some must-do activities, including visiting the Johnny Cash Museum, the Ole Smoky Distillery, and the Tennessee State Capitol. We are featuring some of Nashville’s hottest restaurants during dine-arounds, and we will head to the honky-tonks on Broadway (fan favorites: Legends Corner and The Stage!) following dinner each night.

In preparation for the planned activities, here are our five best networking tips to make the most out of your seminar experience:

  1. Move and shake. Make an effort to circulate and engage with a diverse range of seminar attendees. By moving around and interacting with individuals from various backgrounds, industries, and perspectives, you will broaden your network and enrich your overall seminar experience.
  2. Partake in activities. These informal settings can foster deeper connections and conversations. You can expect to strengthen professional relationships and will have the chance to form lasting friendships.
  3. Eat with new company. Sign up for dine-arounds with people you have never met before.
  4. Stay connected. Maintain the momentum of your new-found connections by exchanging contact information to stay in touch after the seminar.
  5. Let your true colors shine. Networking is all about being authentic and genuine, so don’t be afraid to show off your unique personality and quirks. After all, people remember the real you, so go ahead, be yourself, and watch those connections bloom!
We can’t wait to see you there!

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cmiller_web2_v2Casey Miller is an attorney at Bradley Arant Boult Cummings LLP in Nashville, Tennessee. She has a diverse practice focused on product liability claims, business tort litigation, contract disputes, fiduciary-duty claims involving corporate directors and officers, intellectual property litigation, disputes over non-compete and non-solicitation agreements, and commercial real estate litigation. She practices in both state and federal courts across the country.

sam heaneySam Heaney is an attorney at Martin, Pringle, Oliver, Wallace and Bauer, L.L.P. in Overland Park, Kansas, and he practices in both Kansas and Missouri. Sam’s practice focuses on civil and commercial litigation, as well as general insurance defense litigation, which includes personal injury defense and premises liability defense.

trey perdueTrey Perdue is an attorney at Dentons Sirote based in Birmingham, Alabama. His practice covers a broad range of general business and commercial litigation matters representing clients from diverse industries. Trey has extensive experience handling transportation, construction defect, premises liability, products liability, and aviation claims in both state and federal courts throughout the state of Alabama.

Interested in joining the Young Lawyers Committee? Click here for more information.

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Young Lawyers: Raising the Bar (Cont.)

Attorney Spotlight: Brendan Hall

Brendan is an associate at Harris Beach PLLC in New York City. As a litigator, Brendan focuses his practice on resolving labor law, toxic tort, and commercial disputes. He is admitted to practice law in New York, New Jersey, and the United States District Court’s Southern and Eastern Districts as well as the Second Circuit Court of Appeals. Over the years, Brendan’s advocacy has earned him recognition, including Best Lawyers’ Ones to Watch and Super Lawyers’ Rising Stars.

While primarily serving as a courtroom lawyer, Brendan also chairs Harris Beach’s Wellness Committee, which is responsible for improving the health and well-being of the firm’s 500-plus employees. Additionally, Brendan serves on the DRI Young Lawyers Steering Committee and as co-chair of the Wellness Subcommittee. He also serves on the Syracuse University College of Law’s Alumni Association Board.

How and why did you first get involved with DRI?

I first sought to attend the Young Lawyers Seminar in Atlanta in 2020, but the pandemic had other plans. I was able to make it to Minnesota for the seminar in 2021 and have not looked back. With support and encouragement from my firm, I got involved to network with lawyers from around the country, learn best practices and how to better serve my clients, and hopefully to add some value to others as well.

What is your favorite part of being a lawyer?

Resolving legal issues to a client’s satisfaction is most fulfilling. I view my role as a lawyer as a problem solver. I self-impose a high amount of pressure to resolve a client’s issues as fast as possible. They depend on it. Delivering is a satisfying feeling.

What is the best advice you have been given relating to the practice of law?

Read all of your briefs out loud. This serves two purposes. One, it catches those sneaky typos that word processors miss and helps to refine arguments and prose. Second, it serves as oral argument preparation. I have spent countless hours, which probably amount to weeks or months at this point over seven years, standing alone reading my briefs as though I were delivering argument in court. This has helped me to strengthen both my written and oral advocacy.

When you are not practicing law, what do you enjoy doing?

I am very active when not practicing law. I enjoy workout classes, basketball, boxing, yoga, hiking, biking, and travel. I love all parks, whether it be a national park or tiny NYC park. I also enjoy a slower pace when not chasing endorphin rushes, including reading, meditating, and spending quality time with my family and friends.

Who is your favorite lawyer of all time?

The Honorable Ruth Bader Ginsburg, also known as “The Notorious RBG!” Her stellar and clever advocacy before the Supreme Court as well as her time on the bench was remarkable and inspiring.

brendan hallBrendan P. Hall is an Associate Attorney at Harris Beach PLLC in New York City. As a litigator, Brendan focuses his practice on resolving tort and commercial disputes. He is admitted to practice law in New York, New Jersey, the United States District Court’s Southern and Eastern Districts, and the Court of Appeals, Second Circuit. He received his J.D. from the Syracuse University College of Law. Outside of the law, Brendan enjoys playing basketball, golfing, fitness, traveling, reading, and spending time with his family and friends.

EEOC Finalizes Harassment Guidance

By Cody Paschall

On April 29, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) revealed its final version for enforcement guidance on workplace harassment. Since the EEOC’s last guidance on workplace harassment, there has been a monumental Supreme Court case in Bostock v. Clayton County. There, the Supreme Court held that Title VII of the Civil Rights Act of 1964 provides protection to employees against discrimination because of sexuality or gender identity. The EEOC was further motivated to establish a new protocol with the emergence of the social movement #MeToo and changing work conditions with remote work, teleconference meetings, and social media use.

The new guidance issued by the EEOC will serve as a single resource for employers to comply with workplace harassment law, replacing the EEOC’s five guidance documents issued between 1987 and 1999. Charlotte Burrows, head of the EEOC, stated simply “[a]ll workers need to be safe and able to work free of harassment.” Further, Burrows reflecting on the new guidance stated that it “answers the call of the #MeToo movement” and that it “reflects important developments affirming that individuals are protected against harassment on the basis of sexual orientation and gender identity.” The new guidance is a source of clarity for employers who have seen a surge of sexual and racial harassment cases in recent years.

The EEOC explained its guidance below:

Structure of this Guidance

In explaining how to evaluate whether harassment violates federal EEO law, this enforcement guidance focuses on the three components of a harassment claim. Each of these must be satisfied for harassment to be unlawful under federal EEO laws.

Covered Bases and Causation: Was the harassing conduct based on the individual’s legally protected characteristic under the federal EEO statutes?
Discrimination with Respect to a Term, Condition, or Privilege of Employment: Did the harassing conduct constitute or result in discrimination with respect to a term, condition, or privilege of employment?
Liability: Is there a basis for holding the employer liable for the conduct?

This guidance also addresses systemic harassment and provides links to other EEOC harassment-related resources.
There are several notes that employers should key in on going forward.

1. The new guidance provides extensive protections for LGBTQ+ employees.

The EEOC made clear that workplace harassment that is based on a protected characteristic is prohibited. Following Bostock, sexual orientation, under the protected characteristic sex, means that any workplace harassment based on sexual orientation is prohibited. This includes discrimination based on gender identity or transgender discrimination. The EEOC provides several examples of what constitutes harassment based on sexual orientation and gender identity. Included in their examples were sexualizing an employee’s identity as lesbian, questioning the gender roles in a lesbian couple, sending text emojis that infer a sexualized act between a gay couple, telling a transgender employee to wear clothes that align with their sex at birth, and knowingly misgendering a transgender employee.

2. Remote workers can be harassed virtually.

With the rise of remote work in knowledge-based organizations, employers will need to uphold the same professional standards required for in-person employees. With remote work arrangements, harassment could be in the form of a Microsoft Teams message, text message, email, or a videoconference. Examples of this provided by the EEOC included an employee having a racist image in their video background and sexual comments directed to an employee about their bed being close to them during a video meeting. The message by the EEOC is clear: the same professional, anti-harassment standards established for in-person work apply equally to remote work.&;

3. Updated protections for pregnancy-related harassment.

The EEOC’s guidance included harassment “based on pregnancy, childbirth, or related medical conditions. This can include issues such as lactation; using or not using contraception; or deciding to have, or not to have, an abortion.” The EEOC examples make it clear that employees should be cautious with pregnancy commentary. This includes snide remarks about an employee prioritizing her upcoming birth, sexualized remarks about lactation, or questioning an employee’s dedication to her career after being granted an accommodation. For example, Sarah is granted a pregnancy-related accommodation that allows her to work remotely several times a week due to morning sickness. Her organization soon lands a big deal and Sarah asks to be staffed on the matter. If an employee were to question her dedication to the deal in discussions on whether to staff her based on her not going into the office, it would constitute harassment based on a pregnancy-related medical condition.

4. Harassment outside of work.

The EEOC’s guidance left open whether companies would be liable when conduct outside of work has consequences that lead to a hostile work environment. See also Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 60 (1986). The EEOC provided an example where a black employee endures racist slurs and was physically assaulted by White coworkers on a city street, and then has the presence of those coworkers in the Black employee’s workplace. The presence of the racist employees in the Black Employee’s workplace could then result in a hostile work environment. While the EEOC said employers are generally not liable for conduct that occurs in a non-work-related context, this possibility for workplace harassment should raise alarm bells for employers.

The EEOC also raised the issue of harassment outside of work as it relates to social media or phone usage. Here, the EEOC provided an example where an Arab American employee is the subject of ethnic epithets from a coworker on social media and either the employee learns about the post, or a coworker sees the content and discusses it at work. Social media posting can then possibly contribute to a hostile work environment based on national origin. While the EEOC states that “postings on social media account generally will not, standing alone, contribute to a hostile work environment if they do not target the employer or its employees” it is unclear when social media posts by an employee amounts to a hostile work environment. The EEOC example should raise questions about employers’ control over what employees post on social media and when their contributions amount to a hostile work environment.

5. Religious Discrimination update.

Religious discrimination can include atheism or lack of religious beliefs, one’s religious practices, or religious dress. Employers should be cautious of their employees using religious stereotypes which can constitute harassment or harassment because of the accommodations an employee requests related to their religious beliefs. Examples provided included an employee repetitively telling another employee to find religion and commenting about an employee’s religious accommodation that allowed him to maintain his beard by providing him an exception to the face wear required for work.

6. The EEOC’s guidance provides valuable resources to employers and employees.

The EEOC’s guidance provides valuable information to be used by employers in training and to provide employees with tools to help spot workplace harassment earlier. For employees, the Questions and Answers sheet provides a series of eight valuable questions that lets employees know what is and isn’t harassment. Likewise, for small businesses, the Small Business Fact Sheet lets employers know what type of conduct violates the law, what traits are protected, and other valuable information.

What’s Next?

The new guidance should expect legal challenge as several state attorneys previously filed a joint letter to the EEOC in November 2023 about the EEOC’s proposed guidance declaring their intention to challenge the guidance. However, despite the expected challenges the EEOC will face, the new guidance is effective immediately, and employers will need to comply with the new guidance. Employers will want to use this guidance in adopting new anti-harassment policies because the EEOC will utilize the new enforcement guideline in its harassment investigations and litigation of harassment claims going forward.

Paschall_CodyCody Paschall is an Associate at Dentons US LLP in Dallas, Texas. He represents clients in general commercial litigation matters. His practice currently focuses on advising clients on complex insurance coverage disputes, class actions, and government and internal investigations. He is a member of the Denton’s Litigation and Dispute Resolution practice group.

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