Michael Burke

Please see the article we prepared on the Mallinckrodt decision, a must read for those in the IP and pharma space.

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VT comprehensive privacy bill down for the count? Hear more from Kyle G. Kessler (she/her), Christine Xiao and William Carter #privacylaw

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Legal Ops peers - Discussion topic: CLOC vs ACC Legal Ops memberships- 👉 Do you have both? Or just one? 👍 What are the reasons for having both? 💰 Is it worth the cost to have both? I can't be the only curious mind wondering this, so let's dive in and share thoughts (and be kind please!)

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More Spokeo (and Transunion v. Ramirez) influences in the debt collection space....mere confusion resulting from not following the fair Debt Collection Practices Act (FDCPA) law does not create sufficient standing to bring an action. Folks who are not lawyers or who don't engage in consumer litigation likely wonder why I often reference Spokeo. I am referring to a prior U.S. Supreme Court case that held that even if a party violates the letter of the law, you (as a private litigant) still may be unable to sue them in (federal court) unless you can prove how you were concretely damaged by that violation. In the consumer financial services and privacy law worlds, Congress has created many laws with specific conduct requirements , such as requiring a debt collector to reveal the name of the original creditor in a debt collection communication so the debtor can lookup other details related to the transaction that created the debt. Under the Spokeo doctrine, if these conduct requirements are violated, you still may have no basis to sue unless you can prove some form of concrete damage to you. In the data privacy realm, this sometimes means that those who have had their data improperly leaked (the Leakee ?) have no cause of action against the Leaker unless the Leakee can show he/she was damaged somehow by the violation.

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The verdict form on my latest trial published today. To my surprise, the jury awarded more than double my calculation in the aggregate and more than four times one component of my calculation where there was a lot of uncertainty, in part because of a lack of defendant-produced data. I wonder if one reason that the jury came in higher is because I highlighted to it many times the amount of uncertainty around the source data I relied on because of discovery gamesmanship practiced by the defendants (e.g., refusal to produce relevant documents). As an aside, discovery gamesmanship is unfortunately a common occurrence when calculating damages. I have a forthcoming paper on this topic borne of my own experiences based on data available in the public record. In this instance, it appears that the jury saw through the gamesmanship and made its own conclusions about the impacts on my calculations.

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💡💼 The acquisition of Vestige is the latest in a series of strategic moves by ArcherHall to expand its service offerings and market presence. Previous acquisitions, including Forensic Pursuit, Cooper Discovery Solutions, and Shephard Data Services, have solidified ArcherHall’s position as a comprehensive provider of digital forensics and e-discovery services. With the addition of Vestige, ArcherHall now offers a more robust suite of cybersecurity solutions, including proactive and reactive cybersecurity measures, cybersecurity compliance, and expert testimony for civil and criminal litigation. 📈 ⚖️ According to Complex Discovery OÜ, the eDiscovery market is set to experience steady growth from 2023 through 2028, with the aggregate market size anticipated to grow from $15.09 billion to $22.65 billion, reflecting a Compound Annual Growth Rate (CAGR) of 8.46%. This solid growth trajectory underscores the increasing significance of eDiscovery across various legal, corporate, and government activities, driven by the burgeoning volume of data and the escalating need for efficient data management and analysis. 🔎🔗 Read the complete article from ComplexDiscovery OÜ's investment beat at https://buff.ly/4eozJ9d. #Acquisition #eDiscovery #Cybersecurity

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According to recent survey of investment advisers, investment management professionals now identify Off-channel communications as their top compliance concern. 59 percent of survey respondents identified electronic #surveillance / off-channel communications as the “hottest” compliance topic.

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Massachusetts courts conduct a fact-specific common law analysis to determine adverse possession. Read my colleague Brad Hickey’s summary of a recent Land Court decision finding that a shareholder in a closely held family corporation acquired a parcel of the corporation’s real property by adverse possession. The court’s analysis could potentially apply to limited liability companies, trusts and partnerships as well. We will be tracking this case as it moves on to the Appeals Court. #adversepossession #realestate #realestatedeals #DEinsights #closelyheldcorporations #commercialrealestate

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DEPOSITION SUMMARIES: The objective of a deposition summary is to present a condensed version of the deposition transcripts where key points are summarized and referenced with their corresponding page and line number from the original transcripts.   There are three types of deposition summaries: 1.  page-line, 2.  topic-by-topic, and 3.  chronological. Throughout the litigation process, multiple parties will rely on the deposition summary. Attorneys rely on deposition summaries to prepare for pretrial motions, additional depositions, and trial witness exams. They are also useful for attorneys who could not be present at the deposition.   Before attempting to write the summary of the deposition, the paralegal or the summarizer should keep these 3 basic steps in mind: 1. Reading the Transcripts: Focusing on questions asked by the attorneys and the witness’s responses.   2. Annotating Key Points: This includes highlighting the key points that need to be included in the summary.   3. Summarizing Key Points: This includes organizing the key points in the format of a chart, including columns like “Testimony,” “Topic,” and “Page/Line.”   Writing a summary is ultimately about prioritizing information. There should not be any unrelated details in the summary, and it should reflect the focus of the deposition. As a rule of thumb, well-written summaries should be able to convey 5 pages worth of testimony in a single page of summary. This post was inspired by Shannan Hill.   *** Corporations and law firms hire Beyond Paralegals to put systems, processes, and technology in place to help drive client services and improve workflows for better legal and business outcomes. #wearebeyondparalegals

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The Massachusetts Attorney General released guidance on AI developers, suppliers, and users' obligations under Massachusetts consumer protection, anti-discrimination, and data security laws. Nothing earth-shattering in the advisory notice and another example of how existing laws are being used to regulate AI. The advisory presents the below non-exhaustive list of acts and practices that may be considered to be unfair and deceptive under the Massachusetts Consumer Protection Act: - Falsely advertising the quality, value, or usability of AI systems - Supplying an AI system that is defective, unusable, or impractical for the purpose advertised - Misrepresenting the reliability, manner of performance, safety, or condition of an AI system - Offering for sale or use an AI system in breach of warranty, in that the system is not fit for the ordinary purposes for which such systems are used, or that is unfit for the specific purpose for which it is sold where the supplier knows of such purpose - Misrepresenting audio or video content of a person for the purpose of deceiving another to engage in a business transaction or supply personal information as if to a trusted business partner as in the case of deepfakes, voice cloning, or chatbots used to engage in fraud  - Failing to comply with Massachusetts statutes, rules, regulations or laws, meant for the protection of the public’s health, safety or welfare 

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This is a remarkable article from Patently-O on the effect of Cellect v. Vidal pending before the Supreme Court that provides statistics straight from the USPTO. This case generally revolves around the very common continuation practice that is used to create families of patents around a single priority application. This is something that the USPTO and the courts have been wrestling with, as they seem to believe that the system is abused to get multiple patents for the same invention and extend patent terms. This new case brings up the potential of a patent being invalidated for being similar to another in the family where no terminal disclaimer is filed. That is, is potentially provides the ability to use Obviousness-Type Double Patenting as a ground to invalidate a patent. As noted in this article, the statistics on this are staggering, where a large percentage of the total number of patents could be affected. We certainly will have our eye on this case, as it could affect patent filing strategies going forward: https://lnkd.in/eBenFpf5

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Are you aware of who owns the IP created by employees at work? Different types of IP have different default ownership rules and exceptions. To avoid surprises, employers should have employees sign documents assigning all IP rights to the company. This also applies to independent contractors (who initially own their creations even if the company paid for the creations).

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Schwanke v Alexakis - Part 7 of 8 (links to other parts in the comments) Adamson JA at [234]: "Equity, in certain defined instances, imposes a presumption to give the person seeking to impugn the transaction a forensic advantage by casting the onus of proof on the party seeking to maintain the transaction or gift. One can see good reason for this to be so in respect of inter vivos transactions because to cast the onus on the alleged victim of undue influence or unconscionability tends to undermine equity’s protection. However, in the case of testamentary gifts, the alleged victim of undue influence or unconscionability is, by definition, dead, rendering restoration of material benefit to the victim impossible. Those seeking to impugn testamentary gifts are either, as in the present case, other beneficiaries (under the final or previous wills) or those who would take on an intestacy. There would not appear to be any compelling basis for granting such persons a forensic advantage by casting the burden of proof on the person seeking to propound the will. Indeed to do so would almost inevitably have the unfortunate consequence of facilitating challenges, particularly where there may be an expectation (which would be reasonable if there were such a presumption) that the cost of such challenges would be borne by the estate, which would be diminished accordingly." That is, a living vulnerable person cheated out of property can personally experience the justice of having it returned. It cannot be returned to, and enjoyed by, a dead person. Knowing this also has a policing force - priests, doctors, solicitors and their ilk ought to be wary of their personal conduct if they know that equity prevents them from stripping away the assets of the vulnerable whilst they remain alive. Also, "doing right” to rectify the consequences of any abuse involves redistributing the deceased's property amongst various classes of possible beneficiaries. This distinction is often lost on eager beneficiaries – the estate of a deceased person never truly becomes “theirs" unless and until a person dies and their estate is administered. They have a right as a beneficiary to due administration only. Seeing a presumed inheritance melt away, particularly when of great size, can cause acute emotional distress. But legally, the property was never "theirs" - it was at all relevant times the testator's, and then the testator's chosen beneficiaries. To rule otherwise risks gumming up the Courts with challenges from disappointed beneficiaries based on arguments of conscience and fairness. Which, as all practitioners in this area know, have nothing to do with the law of wills. We return to the starting point that testators have perfect testamentary freedom. For the Court of Appeal's conclusion, see the final part, Part 8, linked in the comments below…

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I have been thinking about the challenges we encounter as investigators when we are confronted with misconceptions and inaccurate assumptions about what an investigator does. I recently presented “Myths about Investigations,” a webinar for the American Institute of Healthcare Compliance. The webinar covered these key topics: •        How employees misunderstand the goals and standard techniques in the investigation process. •        Effective responses to misconceptions so that you can message your role effectively in your organization. •        Ways an investigator can manage the expectations of other employees when they are asked to participate in the investigation process. I wanted to share the webinar with each of you. This information is too valuable not to share. The webinar is great for individual learning or a lunch-and-learn with colleagues. You can find the webinar on YouTube. Here is the link: https://lnkd.in/eVqHiybx. This module is one of the twenty-seven different investigator training sessions I offer. Each one is presented from the mindset of a practitioner. ______ Winter Investigations helps companies strengthen their workplace investigations with investigator training, developing procedures and protocols, and advisory services. Contact me for a no-obligation investigation program assessment. Find my workplace investigation books at Amazon. Learn more about me at winterinvestigations.org.

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