Five Eyes Issues Guidance for the Deployment of “Smart City” Technologies

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Privacy, Technology and Perspective

Five Eyes Issues Guidance for the Deployment of “Smart City” Technologies.  This week, we welcome new “smart city” cybersecurity guidance issued by the Five Eyes intelligence alliance, which consists of Australia, Canada, New Zealand, the United Kingdom, and the United States.  For our municipal clients (and for vendors who provide these technologies), this guidance is as long overdue as it is important.

Background: The term “smart cities” refers to communities that:

• ·        Integrate information and communications technologies (ICT), community-wide data, and intelligent solutions to digitally transform infrastructure and optimize governance in response to citizens’ needs; and

• ·       Connect the operational technology (OT) managing physical infrastructure with networks and applications that collect and analyze data using ICT components—such as internet of things (IoT) devices, cloud computing, artificial intelligence (AI), and 5G.

“Smart city” technologies include interconnected networks, sensors, and advanced analytics that manage various aspects of city life, from traffic and waste management to public safety and energy consumption. Many communities and commercial developments have deployed these technologies in an effort to improve the quality of life for their citizens, enhance public services, and create more efficient urban environments (think of parking and urban-transit planning, to name just two examples).

But smart city technologies are accompanied by substantial cybersecurity risks, and specifically introduce “potential vulnerabilities that, if exploited, could impact national security, economic security, public health and safety, and critical infrastructure operations.”

Don’t just take our word for it. The preceding quote appears on page 4 of the new Five Eyes guidance, which is available for you to read by clicking on the following link:

https://www.cyber.gov.au/sites/default/files/2023-04/Joint-guidance-cybersecurity-best-practices-for-smart-cities.pdf

Here are more details:

Five Eyes’ Guidance: On April 19, 2023, Five Eyes issued its “Cybersecurity Best Practices for Smart Cities.”  The guidance aims to help governments, city planners, and technology partners build secure, resilient, and privacy-respecting smart cities. Generally, the guidance highlights the risks to “smart cities” and makes recommendations.

Smart City Risks. Summarized, the guidance identifies key smart city risks, including the creation of an expanded and interconnected attack surface, and the potential loss of visibility into components owned and operated by vendors.  The guidance notes that communities that deploy such technologies may find it difficult to maintain awareness and control of their evolving network topology.  Additional risks include those presented by automating critical operations (e.g. wastewater treatment), and poor security practices associated with the supply chain and vendors. These can lead to disruption of availability in operational technology, network failures, theft of data and intellectual property, and worse.

Recommendations.  The guidance suggests the following recommendations:

1. Secure planning and design: Communities should be strategic and exercise “proactive cybersecurity risk management processes in their plans and designs for integrating smart city technologies into their infrastructure systems.”  This means assessing the risks associated with deploying smart city technologies and prioritizing mitigations based on potential consequences before deploying such technologies. Secure planning and design should focus on accounting for both physical and cyber risk as the cyber-physical environment converge.  Organizations should ensure that Information Technology (IT) and OT security issues are adequately considered and addressed

2. Prioritize cybersecurity and data privacy: The guidance specifically encourages organizations implementing smart city technologies to take some prescriptive cybersecurity and privacy steps, including:

   • ·       Applying the principle of least privilege throughout their network environments,

   • ·       Utilizing and enforcing multi-factor authentication,

   • ·       Implementing zero trust network design principles,

   • ·       Maintaining awareness of changes to network architecture,

   • ·       Securely managing smart city assets, including sensors and monitors,

   • ·       Protecting internet-facing services and devices by securing remote access,

   • ·       Timely patching apps and systems, and

   • ·       Reviewing the legal, security, and privacy risks associated with deployments.

3. Proactive Supply Chain Risk Management: The guidance encourages communities to gain and maintain control of their supply chains, recognizing that “a vulnerable…supply chain could allow the degradation or disruption of infrastructure operations and the compromise or theft of sensitive data from utility operations, emergency service communications, or visual surveillance technologies…” and that “smart city IT vendors may also have access to vast amounts of sensitive data from multiple communities to support the integration of infrastructure services—including sensitive government information and personally identifiable information (PII)—which would be an attractive target for malicious actors.” The guidance therefore encourages procurement officials to establish minimum security requirements and controls for vendors, and to require vendors to be transparent with how their systems will collect and process data. The guidance further urges that product vendors should assume some of the risk associated with their products, and develop their technologies in adherence to secure-by-design and secure-by-default principles.  Additionally, it prescribes due diligence on hardware and IoT device components, and appropriate contracting that includes organizational security standards with all vendors, including managed service and cloud service providers.

4. Ensuring Operational Resilience.  The guidance also suggests that deployments of smart city technologies need a back-up plan if the technologies fail, and particularly have manual operations of all critical infrastructure functions. Staff should also be trained accordingly, and incident response and recovery plans should be robust.

Our thoughts:

Lower Cost, Higher Risk. Many “smart city technology” vendors pitch to cities not only the benefits to the cities, but a high value for a low, low cost, offering discounts or even free installations in return for being able to sell advertising. Nirvana! This is obviously eye-grabbing to city planners and department heads who are watching their budgets. But selling advertising requires more and better surveillance, in order to gather potential-customer data to sell to advertisers or data brokers (or to real estate agents, brokers, or developers). This raises a host of data-privacy issues across an increasing number of states and even nationally (FTC).

What about the Data? “Smart city” vendors may amass, sell, and otherwise leverage data associated with the technologies, unless specifically restricted by contract, then monitored regularly.  This means that communities that consider deploying these technologies need to be particularly sensitive to data issues.  Yet, anecdotally, we have noticed that the backgrounds of lawyers who run “smart city” deals often consider data issues only tangentially, if at all. This is a huge mistake, especially at a time when vendors everywhere are chasing additional revenue streams. If left unrestricted, vendors may sell the data to data brokers or chase the AI “Golden Goose” by “decanting” the data into huge vats of data from other sources – namely, the “training sets” for AI models, which are being created by AI developers and perhaps even the smart city vendors themselves. See above – then take the existing complexity and risk, and multiply it.

Here, Security Breaches may Mean Literal Danger.  More, better, and interconnected surveillance over where you live, drive, or ride (and when you leave), where and when you park, when you leave work (and walk to the parking lot in the dark), etc., would strike many people as creepy – and dangerous – enough. (The Drivers’ Privacy Protection Act and state analogues, inspired from stalking incidents, already exist for a reason. We think their concepts should be expanded to exploitation of “smart city” data.)

No matter how snazzy it is and how free it sounds, “smart city” technology must be secured like the critical-infrastructure technology it often is.  We’ve already seen oil-rig technology penetrated, water-dam controls hijacked, and more, often by indirect attacks through innocent-looking controls that are interconnected with larger ones. (Remember the Target stores breach, years ago? Hackers gained entry through the controls to a Target building’s smart HVAC system.)  We emphatically do not need hackers taking control of – for example – light-rail streetcars, running through downtown cities.

If You’re Already “Smart,” revisit your deployments, and particularly scrutinize the contracts, components, system access and data use rights associated with those technologies. If you’re hungry for progress, take the necessary steps in order to be ready for the attendant risks.

—

Hosch & Morris, PLLC is a boutique law firm dedicated to data privacy and protection, cybersecurity, the Internet and technology. Open the Future℠.

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Rules Are Rules

Badger Tavern LP v. City of Dallas

Dallas Court of Appeals, No. 05-23-00299-CV (April 20, 2023)

Chief Justice Burns (opinion available here) and Justices Molberg and Goldstein

Kelli Hinson

The
rules authorizing interlocutory appeals are strictly construed—really strictly.
Rule 168 requires that a court’s permission to appeal an otherwise unappealable
order “must be stated in the appealed order.” In this case, the trial court
denied a Rule 91a motion to dismiss and then later signed a separate order
granting permission to appeal that denial. The Dallas Court of Appeals, relying
on the plain language of the rule and similar cases out of other jurisdictions,
dismissed the appeal. It held: “[b]ecause the trial court did not sign a single
order that both denied appellants’ rule 91a motion to dismiss and granted
permission to appeal the order, this Court has no jurisdiction over this
appeal.”

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Modifying your Texas Divorce Decree is Not a Do-it-Yourself Project

Avoiding the courts may seem like a simple solution to modifying your Texas divorce decree, but it can create a more complex case than taking proper legal avenues from the start.

The post Modifying your Texas Divorce Decree is Not a Do-it-Yourself Project appeared first on Goranson Bain Ausley.

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Insurance Coverage Not Limited by a Texas Service Agreement

As you negotiate your master service agreements are you confident that you know how insurance choices might affect indemnity obligations? Me neither. That’s why I turn to my Gray Reed partner Darin Brooks and his insurance coverage lawyers. I didn’t consult them about this post so all errors are on me, not them.

A basic principle of Texas insurance law is that a separate contract may be incorporated by reference into an insurance policy only if that reference is clearly manifested in the terms of the policy itself.  A court will consult the separate contract only to the extent that the policy requires it.

The question in Exxon Mobil v. National Union Fire Insurance Company was whether an insurance policy incorporated payout limits in an underlying service agreement. It did not.

The facts

Savage Refinery Services was an independent contractor at the Exxon refinery in Baytown. In the service agreement Savage promised to obtain at least a minimum stated amount of liability insurance for its employees and to name Exxon as an additional insured. Fulfilling its obligation, Savage procured five different insurance policies. Two Savage employees were severely burned in a workplace accident, sued Exxon for compensation for their injuries, and settled for $24 million. $5 million was paid from Savage’s primary insurance policies. National denied Exxon coverage under an umbrella policy. Exxon sued for breach of contract.

Summary judgments were heard on the question of Exxon’s status as an insured under the umbrella policy and whether the Exxon-Savage service agreement otherwise limited Exxon’s entitlement to further policy proceeds.

The Court’s reasoning

The policies defined “Insured” as “any person or organization, other than the Named Insured, included as an additional insured under Scheduled Underlying Insurance, but not for broader coverage than would be afforded by the Scheduled Underlying Insurance.”

The first question was easily resolved: National had recognized Exxon as an additional insured under its primary policy. The primary policy was incorporated for the limited purpose of identifying who was an insured.

The real inquiry was invited by the umbrella policy’s reference to the primary policy. The umbrella policy disclaimed “broader coverage” than what the primary policy offered. Exxon was not demanding broader coverage. It sought only the same coverage as the primary policy but at the umbrella policy’s higher limits because the primary policies had been exhausted.

National Union argued that the limit on “broader coverage” invoked payout limits of the service agreement, but the umbrella policy did not say anything about the service agreement’s payout limits.

To the extent it could read the umbrella policy to reference the service agreement, the Court found no limits that the umbrella policy could adopt. The primary policy had its own payout limits, which was the very reason that the parties needed an umbrella policy. Interpreting “broader coverage” to refer to payout limits would give the umbrella policy a self-defeating meaning.  An umbrella policy springs into action only when the primary policy is exhausted. To conclude that “broader coverage” referred to payout limits could be the result only if the language the parties use clearly required it. There was no such language here.

The Court considered conventional usage of the words “coverage” and “umbrella insurance”. The former contemplated the risks covered, the latter was triggered only by reason of the limits under other policies. Coverage does not include payout limits in this context. The umbrella policies provide greater limits for risks already covered by primary policies.

The Court of Appeals’ decision in National’s favor was reversed and the case remanded.

Your musical interludes, sponsored by GM … and Ford …

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What is The Frozen Embryo Law In Texas?

Modern reproductive technology has in recent years helped many parents who would have otherwise had difficulty having children. For example, in vitro fertilization is often effective for those who want to be parents but cannot do so through traditional means. The in vitro process involves harvesting mature eggs from the female and fertilizing them in the lab. Thereafter, they are often frozen to be used later.

However, a couple may divorce before the frozen eggs are used, and questions arise about what to do with the eggs or who owns them. This is why some Texas courts have addressed the matter recently. Our Dallas divorce lawyers at Orsinger, Nelson, Downing, & Anderson can help with questions about this and other divorce-related issues.

How Texas Views Frozen Embryos

Laws about frozen embryos in Texas view the matter from a contractual point of view to decide who owned the frozen eggs before the couple divorced. When a couple decides to freeze embryos, they must sign a contract detailing how the embryos are owned in the event of a divorce. The document must be signed at the fertility center or in front of an attorney.

Laws in this area stem from a case that eventually made it to a Texas Court of Appeals. It involved a couple who filed for divorce before their frozen embryos were implanted. The contract signed by the couple stated that the embryos had to be thrown out if they divorced. The Court of Appeals ruled that the contract had to be followed; the embryos should be destroyed.

While this would seem to resolve the issue, there are still uncertainties in specific situations involving frozen embryos today. Depending on the circumstances, Texas legal experts say a court could rule on frozen embryo ownership during a divorce as follows:

• If the couple does not have an agreement that states what happens to the embryos after divorce, the court would not force one person to be a parent if they do not want it.
• If the couple has an agreement and the embryos go to one person, the Court could disregard it so one person is not forced to have children they do not want.
• If they agree that the embryos must be donated to another couple or for scientific research, the court could disregard it with additional conditions so one party is not forced to be a parent when they do not want it.

Are You Planning To Freeze Embryos?

If you and your spouse want to freeze embryos for later use, there are steps you can take now to reduce the chances of future disagreements.

First, before freezing the embryos talk about all of the possibilities with your partner. For example, talk about who would take possession of the embryos in case of divorce or what you would do with them if that happened. It may not be the most comfortable conversation, but it can avoid future complications by having a frank discussion now.

Second, check the policies of the fertility clinic you intend to use; different clinics may view this matter in different ways. You may want to choose a different clinic if the policies of one do not meet your expectations.

Third, talk to an experienced family law or divorce lawyer to help you determine how to handle the frozen embryo ownership. Planning in case of divorce, especially with such a potentially contentious topic, in this area is critical to ensure your rights and wishes are respected.

Contact Our Dallas Divorce Lawyers Today

If you have questions about divorce or how the Texas embryo laws affect you during or after a divorce, we understand your concerns. Our Dallas divorce lawyers at Orsinger, Nelson, Downing, & Anderson can help, so call (214) 273-2400.

The post What is The Frozen Embryo Law In Texas? appeared first on ONDA Family Law.

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Copyright Discovery

A copyright action is governed by a three-year statute of limitations. In Martinelli v. Hearst Newspapers, LLC, the Fifth Circuit confirmed that recent Supreme Court decisions did not overruled Circuit precedent that applies a discovery rule to that statute. No. 22-2033 (April 13, 2023).

The post Copyright Discovery appeared first on 600 Camp.

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Mediation Reminders

When preparing for mediation, attorneys and clients often are focused on the “mechanics of the deal.” However, all too often a successful strategy that is well implemented leading to an apparent “good deal” is circumvented as the result of mistakes in the closing of the deal.

The post Mediation Reminders appeared first on Goranson Bain Ausley.

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Sorta Stay

The motions panel ruled in Alliance for Hippocratic Medicine v. FDA, No. 23-10362 (April 12, 2023). In a nutshell, the panel majority concludes that (1) the plaintiffs have standing based on the percentage of mifepristone users who have side effects, (2) the plaintiffs’ challenge to FDA’s original approval of mifepristone for use in medication abortions is likely time-barred, and (3) FDA did not meet its burden, as the party seeking a stay, to show that plaintiff’s other challenges to FDA’s regulation of mifepristone were time-barred or otherwise fatally flawed. Judge Haynes would have granted an administrative stay and otherwise deferred to the merits panel (who is, in fact, not constrained by any of (1)-(3)). Further proceedings in the Supreme Court appear likely.

Valuable 600Camp merchandise can be yours if you identify the distinguished-looking gentleman to the right.

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The Jones Act: A Lifeline for Injured Seamen

The Jones Act, formally known as the Merchant Marine Act of 1920, has served as a cornerstone of maritime law in the United States for over a century, providing essential protections and rights to seafarers and maritime workers. This vital legislation promotes the growth and maintenance of a robust U.S. merchant marine fleet, ensuring national security, and fostering economic stability. The Act specifically mandates that all goods transported between U.S. ports be carried on vessels that are built, owned, and operated by American citizens. Additionally, the Jones Act provides legal recourse for injured seamen, allowing them to seek compensation from their employers in cases of negligence or unseaworthy vessels. As a result, this historic law has become an essential tool in safeguarding the rights and well-being of those working in the maritime industry while simultaneously bolstering the nation’s shipping capabilities.

What is the Jones Act?

The Jones Act is a federal law that governs the operations of the American maritime industry. It has three primary objectives: to protect American shipping interests, maintain a capable and well-equipped merchant marine, and to provide legal protection to seamen injured during their employment.

The Jones Act and Seamen’s Right to Recover Compensation

One of the most important aspects of the Jones Act is the protection it offers to seamen injured in the course of their duties.  Unlike most workers who are injured, Jones Act seaman can bring negligence claims against their employer.  This is the foundation of the right to recover compensation for injured maritime workers. The Jones Act allows seamen to file a lawsuit against their employer if their injury was caused by the negligence of the shipowner, the employer, or their fellow crew members.

Before the enactment of the Jones Act, seamen injured while working at sea had limited legal remedies. They were often left to rely on the doctrine of “maintenance and cure,” an ancient maritime principle that obligates the shipowner to provide food, lodging, and medical care to an injured seaman until they can recover or reach maximum medical improvement. However, maintenance and cure did not provide compensation for pain, suffering, or lost wages.

The Jones Act filled this gap and extended the rights of injured seamen, allowing them to sue their employer for negligence and seek full compensation for their injuries.

The Scope of Jones Act Protection

To qualify for protection under the Jones Act, an individual must meet the legal definition of a “seaman.”  To be considered a seaman under the Act, a worker must:

• Be employed on a vessel that operates in navigable waters.
• Contribute to the function or mission of the vessel.
• Have a connection to the vessel in terms of both duration and nature.

Examples of negligence that can give rise to a Jones Act claim include:

• Failure to maintain a safe work environment
• Failure to provide appropriate safety equipment
• Inadequate training or supervision
• Negligent operation of the vessel or equipment
• Negligent actions of fellow crew members

The Benefits of the Jones Act Compensation

Injured seamen who successfully pursue a Jones Act negligence claim can recover a wide range of damages, including:

• Past and future medical expenses: The Jones Act allows injured seamen to recover the costs of medical treatment related to their injuries, including hospitalization, surgeries, rehabilitation, and ongoing care.
• Past and future lost wages: Injured seamen can recover compensation for lost income, both past and future. This includes the wages they were unable to earn in the past because of their injuries along with a loss of their ability to earn wages in the future.
• Pain and suffering: Seamen can recover compensation for the physical pain and mental anguish they have experienced as a result of their injuries.
• Loss of enjoyment of life: Injured seamen may be entitled to recover compensation for the negative impact their injuries have had on their overall quality of life and their ability to enjoy everyday activities.
• Loss of consortium: The spouses of injured seamen may be entitled to recover compensation for the loss of companionship, affection, and support that results from their partner’s injuries.

By providing seamen with the right to recover compensation for their injuries, the Jones Act serves as a vital safety net for maritime workers and their families. It ensures that injured seamen are not left to bear the financial burden of their injuries and encourages shipowners and employers to maintain a safe work environment.

The Jones Act in Today’s Maritime Industry

The Jones Act continues to protect American shipping interests and maintain a strong and self-sustaining merchant marine. However, the Act’s most significant contribution is arguably the protection it provides to injured seamen.

The nature of maritime work makes it inherently dangerous, with seamen often facing hazardous conditions and long hours at sea. The Jones Act ensures that these workers have access to the legal remedies they need to recover compensation for their injuries and maintain financial stability for themselves and their families. Moreover, the Act’s negligence provision serves as a powerful incentive for shipowners and employers to prioritize safety and minimize the risk of accidents and injuries.

Get Started With Your Jones Act Claim

Suffering an injury aboard a vessel can be a daunting experience, leaving you with physical, emotional, and financial burdens. Navigating the complexities of maritime law, including the Jones Act, requires expert guidance and representation to ensure that you receive the compensation you deserve.  Morrow & Sheppard, LLP’s team of highly skilled attorneys specialize in maritime law, including the Jones Act claim. Our vast knowledge and experience in handling cases involving injured seamen make us uniquely qualified to guide you through the intricacies of the legal system. With our expertise, you can be confident that you have a strong legal advocate working tirelessly to protect your rights and secure the compensation you deserve.  When it comes to securing fair and just compensation for injured seamen, Morrow & Sheppard, LLP has an impressive track record of success. Our attorneys have secured millions of dollars in settlements and verdicts for clients in maritime injury cases. By choosing Morrow & Sheppard, LLP, you can rest assured that you are partnering with a law firm that has a proven history of achieving favorable outcomes for our clients.  At Morrow & Sheppard, LLP, clients are more than just case numbers. The firm’s attorneys take the time to understand your unique circumstances, listen to your concerns, and provide personalized attention throughout your case.  Our attorneys are compassionate and dedicated to guiding you through the legal process, ensuring that you feel supported every step of the way.  Call us today for a free consultation.

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Legal tech services vLex and Fastcase merge to form one of the world’s largest global law libraries

VLex and Fastcase, two of the largest and fastest-growing legal technology companies, announced today that they are merging to form one of the world’s largest law firm subscriber bases with more than one billion legal documents from more than 100 countries, according to a press release. As part of the merger, Oakley Capital and Bain Capital Credit are investing in the combined business to expand its global reach and accelerate the company’s legal artificial intelligence, or AI, lab. The lab develops AI tools that streamline research, tracking, writing, and filing documents for the legal industry.

“The legal profession has been a late adopter of technology, but lawyers are gaining more of an appetite for artificial intelligence tools in recent years,” said vLex CEO Lluís Faus in a press release. “Bringing these two highly successful businesses together will help democratize the law for legal professionals worldwide through a dynamic and robust platform that improves legal research accuracy, efficiency, and affordability.”

The new combined entity will be called vLex Group, and its products will retain the name of vLex in global markets and Fastcase in the United States, according to the press release. It will maintain headquarters offices in Washington, D.C., Miami, and Barcelona, Spain.

The new company will reach the majority of lawyers in the U.S. (approximately 1.1 million subscribers out of 1.3 million lawyers in the U.S.) in partnership with state bar associations and include legal materials from more than 100 countries around the world. The combined library contains over one billion legal documents, including judicial opinions, statutes, regulations, court rules, docket sheets, briefs, pleadings, motions, authored treatises, and legal news articles.

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No Interlocutory Appeal of Order Deferring Decision on Motion to Compel Arbitration

Builders FirstSource, Inc. v. White

Dallas Court of Appeals, No. 05-22-00724-CV (March 29, 2023)

Chief Justice Burns (Opinion, linked here) and Justices Molberg and Goldstein

Ken Carroll

Builders moved to stay White’s lawsuit against it and to compel arbitration under the Federal Arbitration Act. White responded with a motion for a jury trial on the threshold issue of arbitrability. When the trial court denied Builders’ motion and granted White’s, Builders filed an interlocutory appeal under FAA §§ 16(a)(1)(A) & (B). But the Dallas Court of Appeals dismissed for want of jurisdiction. The Court acknowledged that an order denying a motion to stay and for arbitration ordinarily is appealable under the FAA and Civil Practice & Remedies Code § 51.016. But the trial court’s order here “simultaneously granted White’s motion for a jury trial on arbitrability.” Consequently, the Court explained, “the order can only reasonably be construed as deferring a final ruling on whether to grant arbitration.” Citing decisions from several other Texas Courts of Appeals, the Dallas Court then held that an order deferring decision on the motion to compel, as opposed to “a definitive ruling on Builders’ motion to stay litigation and compel arbitration” is interlocutory and not appealable.

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When it Comes to Service Animals and ESA’s, Did the Texas Court of Appeals Just Throw a Monkey Wrench into the HUD Circular and Title I of the ADA?

Before getting started on the blog entry of the day, I do want to wish everyone celebrating, a happy Passover and a happy Easter. Also, major league baseball has started, so good luck to any of your teams.

 

Turning to the blog entry of the day, one wonders why anyone in the state of Texas would now ever write a supporting letter saying that a person needed an animal for emotional support or needed a service animal. The case of the day is Liebman v. Waldroup, from the Texas Court of Appeals for the first District of Texas, which is Houston. The case can be found here. My thanks to Prof. Emeritus Michael Masinter of Nova Southeastern Law School for alerting me to this case on the AHEAD listserv. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that a healthcare liability claim was not involved; court’s reasoning that deviation from safety standards are not involved; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Facts

 

The plaintiff sued Dr. Liebman and other defendants after a dog bit their three-year-old daughter in the Loose Caboose restaurant in Spring, Texas. The plaintiffs alleged that upon entering the restaurant a pit bull dog named Kingston wearing a “service dog,” vest attacked their child without provocation biting her cheek and severely injuring her. They also allege that the owner of the service dog and her friend, who later told police that he had been previously attacked by that service dog, did not offer to help and then fled the scene with the dog.

 

In the complaint, plaintiffs allege that the owner of the dog’s gynecologist, Dr. Liebman, provided the letter to her solely at her request for the purpose of avoiding eviction from her apartment stating that she required her service animal on the basis of generalized anxiety disorder. The obstetrician took no steps to ascertain whether the dog was actually a service animal, that is whether the dog performed specific works or tasks related to her disability. There were three subsequent letters too, including: 1) a letter from Dr. Liebman dated May 9, 2017 stating that the owner of the dog had depression/anxiety disorder requiring that she have four service animals all of which are certified to be with her to help her with the disorder; 2) a letter from Dr. Liebman dated August 3, 2017 stating that the owner of the dog had generalized anxiety disorder and having her service animals helps her with the disorder. That letter said that she was also taking medication for the disorder; and 3) a letter from December 17, 2019 stating: “Due to Jennifer Romano[’s] anxiety disorder she needs all her service animals. Kingston walks into every entrance before her, everywhere we go. Daisy licks her entire face, Molly brings her toys and sits in her lap, Maddie sits on her chest, Milly puts her paw on her face and Major si[ts] at her side and Lulu sits at her head. It appears as she needs these service animals to control her anxiety and perform her daily duties.”

 

Dr. Liebman filed a motion to dismiss arguing that the claim did not have an affidavit that is required under Texas law whenever healthcare liability claims are filed and because of the lack of that expert report the case had to be dismissed. In Texas, a healthcare liability claimant must serve within 120 days after defendant’s original answer is filed, the defendant healthcare provider with an expert report.

 

II

Court’s Reasoning That a Healthcare Liability Claim Is Not Involved

 

1. Whether a healthcare liability claim is involved is a question of law that appellate courts get to review with a fresh eye, i.e. de novo.
2. To answer the question of whether a healthcare liability claim is involved, the court looks at the claim’s underlying nature rather than its label. That means considering the entire court record, including the pleading, motions and responses, and relevant evidence properly admitted. The focus is on the essence of the claim, the alleged wrongful conduct, and the duties allegedly breached.
3. Where the essence of the suit is a healthcare liability claim, a party does not avoid the requirements of the statute through artful pleading.
4. Under Texas law, a healthcare liability claim is a cause of action against a healthcare provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or healthcare, or safety or professional or administrative services directly related to healthcare resulting in injury to the claimant regardless of whether that injury sounds in contract or tort law.
5. Healthcare is any act or treatment performed or furnished, or that should have been performed or furnished, by any healthcare provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.
6. A healthcare liability claim has three elements: 1) the defendant is a physician or healthcare provider; 2) the claim or claims at issue concerning the treatment, lack of treatment, or a departure from accepted standards of medical care, or healthcare, or safety or professional or administrative services directly related to healthcare; and 3) the defendant’s conduct proximately caused the injury.
7. If expert medical or healthcare testimony is necessary to prove or refute the merits of the claim against a physician or healthcare provider, the claimant has a healthcare liability claim.
8. Plaintiffs allege that this claim is based on Dr. Liebman’s statements in his letters about the dog. More specifically, his statement that the dog was a service animal and was certified and his description of the dog’s behavior. They argue that those letters assisted the owner of the dog in obtaining a service vest for the dog and aided and abetted that owner in deceiving the public that the dog was a service dog when in fact it was not.
9. Plaintiffs do not take issue with Dr. Liebman’s diagnosis of the dog’s owner as a person with generalized anxiety disorder or with his medical judgment that she may benefit from a service animal to help with her disorder. Instead, the claims are based upon his statement that the dog was a service animal and was certified.
10. Liebman’s statements that the dog was a service animal who was certified and his comments about the dog’s behavior was not an inseparable or integral part of the rendition of healthcare to the dog’s owner.
11. There is no accepted standard related to when a medical doctor for humans can offer his opinion about the qualifications and behaviors of animals.
12. Liebman had no basis or qualification for making the statements about the dog for the purpose of helping the dog’s owner avoid eviction which also assisted her in obtaining a service vest for the dog and deceiving the public that the dog was a service dog. Such allegations do not give rise to a cause of action for healthcare liability in Texas. That is, the act giving rise to plaintiff claims are not inseparable from the rendition of healthcare and are not based upon a breach of the standard of care applicable to Dr. Liebman.

III

Court’s Reasoning That Deviation from Safety Standards Are Not Involved

 

1. In a footnote, the court said that the ADA prohibits employment discrimination against qualified individuals with a disability because of their disability.
2. In another footnote, the court noted that the Texas Fair Housing Act provides rights and remedies substantially equivalent to those granted under the federal Fair Housing Act.
3. Liebman did not argue in the lower court that claims against him alleged departure from safety standards pursuant to the ADA and the federal Fair Housing Act, so those arguments are waived.
4. Despite the argument being waived, the court went ahead and addressed the question of whether the safety standard based claim implicates the defendant’s duties as a healthcare provider, including a duty to provide for patient safety. To answer that question, seven factors are involved: 1. Did the alleged negligence of the defendant occur in the course of the defendant’s performing tasks with the purpose of protecting patients from harm; 2. Did the injuries occur in a place where patients might be during the time they were receiving care, so that the obligation of the provider to protect persons who require special medical care was implicated; 3. At the time of the injury was the claimant in the process of seeking or receiving health care; 4. At the time of the injury was the claimant providing or assisting in providing health care; 5. Is the alleged negligence based on safety standards arising from professional duties owed by the health care provider; 6. If an instrumentality was involved in the defendant’s alleged negligence, was it a type used in providing health care; or 7. Did the alleged negligence occur in the course of the defendant’s taking action or failing to take action necessary to comply with safety related requirements set for health care providers by governmental or accrediting agencies?
5. To answer the questions above, the court said: 1) the primary purpose of the letter was to help the dog’s owner avoid eviction; 2) Dr. Liebman did not articulate what safety standards, if any, arising from his professional duties as a healthcare provider applied to the statements in his letters that the dog was certified as a service animal; 3) that the letters he provided may have been physician letters of a type that physicians issue on behalf of their patients is a conclusory argument unsupported by the evidence in the record; 4) the record does not support the argument that the letters were supplied to comply with federal safety related requirements and no such evidence was presented to the trial court; and 5) since there was no evidence pertaining to any applicable safety related standard, it cannot be concluded that Dr. Liebman’s provision of letters opining on the qualifications of the dog as a service animal was integral to his treatment of her.

 

IV

Thoughts/Takeaways

 

1. Nowhere in the opinion is the HUD circular on animals ever mentioned. You can find our discussion about the circular here.
2. As readers of the blog know, the ADA is much more than just an employment statute. It also deals with accessing nonfederal governmental entities and accessing places of public accommodations. The court only mentions explicitly the employment provisions even though the statutory site it gives goes across the titles. Also, technically speaking, ADA causation is not because of but on the basis of or by reason of depending upon the title. See also this blog entry.
3. The court’s discussion about safety standards is arguably dicta because the court said that the argument was waived by Dr. Liebman because of his failure to raise it at the lower court. The appellate court nevertheless went ahead and discussed the question anyway.
4. A bit strange that the court talks about how the letter assisted the dog’s owner in obtaining a service vest because such vests can easily be obtained without any such letters over the Internet.
5. No certification of service animals exists in this country.
6. This case raises the importance of just who should be writing letters saying that a person needs an emotional support animal or a service animal. If the healthcare provider is not someone with training concerning the disability and also has knowledge of the person’s disability, this case has one wondering whether a Texas healthcare liability claim could ever be involved.
7. This case also raises the question of what should be said in such letters. Assuming you have a person with expertise in mental health conditions, the next question becomes under this decision what should the letter say. It would seem that if the letter goes into any specifics at all about what the dog does, the argument gets created under this decision that a Texas healthcare liability claim would not be involved. One also wonders whether a statement in the letter to the effect that the provider is making no representations about whether the dog is a direct threat or the specifics of what the dog actually does is not also needed. Of course, inserting such a statement would help with respect to preserving a healthcare liability claim argument, but it would make carrying out the HUD circular very difficult as well as very difficult to carry out requests for accommodations under title I of the ADA.
8. The case goes too far in some ways. In that you almost have to wonder whether you don’t need a person that evaluates the mental state of the person requesting the service animal or emotional support animal plus a person that can assess whether the dog is behaving as a service animal or an emotional support animal.
9. Service animals are not trained to attack others. In fact, the ADA final regulations are clear that a dog constituting a direct threat to others is not a qualified service animal.
10. Whether this decision blows up the HUD circular in Texas remain to be seen.
11. Jurisdictions will certainly vary in their rules that are attached to healthcare liability claims as well as how they decide when a healthcare liability claim exists. So, make sure you consult a licensed attorney in your jurisdiction to handle that question.
12. The case also raises the question of whether it is not medical malpractice for a physician not specializing in mental health to recommend an emotional support animal or a service animal. Of course, service animals can perform other duties besides those related to mental health. One also wonders whether under this decision, the healthcare expertise must be related in some way to the work or tasks performed by the service animal in order to preserve the argument that a healthcare liability claim is involved.
13. The case also raises the question of whether expert testimony would be needed to determine whether the animal was a service animal (in the interest of full disclosure, I was once certified as an expert by a court to opine on exactly that in a case, but that case settled shortly before trial). An open question exists as to whether that kind of testimony would be medical or healthcare testimony. Arguably, the answer to that question would be no. How the answer being probably no effects whether the claim would be a healthcare liability claim is not exactly clear to me.
14. If a provider does write a letter saying that a person needs an emotional support animal or a service animal, the provider most certainly should not say that the dog has been certified because no such thing exists in this country.
15. In Texas, a claim against a healthcare provider may be a healthcare liability claim if it implicates a healthcare related safety standard even if the standard is not directly related to the provision of healthcare. So, any healthcare provider faced with a suit like this will certainly want to argue at the lower court level, which Dr. Liebman did not do, that a plaintiff making a similar claim as to this case is alleging departures from safety standards pursuant to the ADA and the Fair Housing Act.
16. I don’t think of the service animal regulations in title II and title III of the ADA as being safety standards, but that argument is possible under this decision. Same answer for the HUD circular.
17. I once ate barbecue at a restaurant in Spring, Texas.
18. Pit bulls are not a breed per se. They are also not inherently dangerous. Many pit bulls make excellent service animals, pets, and emotional support animals. The key is training.
19. As we discussed here, breed restrictions are not kosher.
20. One of the letters written by Dr. Liebman mentioned four service animals. If that were really the case, I would want to know what worker task each of those animals performed and how that related to the person’s disability. In fact, Dr. Liebman tried to do exactly that in one of his letters.
21. It is not unusual for a State to impose civil and/or criminal penalties for misrepresenting a dog as a service animal when it isn’t.
22. Is the circular such that it is a right of persons with disabilities so that Texas has to respect what is in the HUD circular? The answer to that question depends upon this blog entry, here.
23. It will be interesting to see if this case is appealed to the highest court in Texas. I don’t view the appellate court decision as being without question with respect to its reasoning.

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Anti-Poaching Agreements May Leave Employers with Egg on their Face

Dallas Employment Trial Lawyer Rob Wiley

A no-poaching agreement is an agreement between two or more companies not to hire or solicit each other’s employees.  It could be a contract between two companies in the same industry.  It could be a contract between a company and a vendor.

It’s easy to see why employers might be tempted to use non-poaching agreements, particularly in a tight labor market with low unemployment.  But the reality is that non-poaching agreements suppress competition for labor and limit employee mobility.  This will result in lower wages and benefits for workers.  This is particularly abusive to the worker who loses out on a job because the new employer is bound by an agreement the worker never signed (and may not even know about).

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Update on Wartime Suspension of Limitations Act and Tax Crimes

Caveat: Although authored and published on 4/1/23, this blog is not an April Fool’s Joke.

I have written before about the Wartime Suspension of
Limitations Act (“WSLA”), 18 USC  § 3287, here, that suspends certain
criminal statutes of limitations while “the United States is at war or Congress has
enacted a specific authorization for the use of the Armed Forces, as described
in section 5(b) of the War Powers Resolution (50 U.S.C. 1544(b)).” The statutes of limitations are suspended in relevant part for crimes “(1) involving fraud or
attempted fraud against the United States or any agency thereof in any manner,
whether by conspiracy or not.” My blogs on this subject discussing the potential
application of this WSLA suspension for tax crimes are collected by relevance here and
reverse chronological order here. In those blogs, I have noted that the WSLA’s literal application to certain tax crimes
involving “fraud” would mean that the WSLA could have a pervasive effect permitting
the charging of tax crimes far before the normal suspensions often encountered for
tax crimes. See also, Michael Saltzman & Leslie Book, IRS Practice and
Procedure, ¶ 12.05[9][a][iii] Suspension and tolling (discussing normal
suspensions and discussing § 3287 at n. 933); and John A. Townsend, Federal
Tax Procedure (2022 Practitioner Ed.) 317-387 (August 3, 2022). Available
at SSRN: https://ssrn.com/abstract=4180710.

1. The blog supplements those discussions
until the next revisions of those respective books (note that I am the
principal author of the Saltzman and Book chapter). Since I have already
brought the discussion up to date in the 2023 working draft for the Federal
Tax Procedure Book (2023 Practitioner Ed.), I will just offer the following
from the 2023 draft (which should be finalized by early August 2023). The last sentence in the carryover paragraph will be changed
to and a footnote added as follows (note that I link the blog entries and key
case entries in this blog but will not link them in the book):

This provision [WSLA] might apply to the Iraqi and
Afghanistan engagements, but its application to tax crimes with
elements of fraud or attempted fraud is notable only because of the many cases
in which it could have been applied but is rarely, very rarely, asserted where
statute of limitations defenses are asserted. fn

   fn E.g., Appeals Arguments Over
Whether Government Brought Evasion and Tax Conspiracy Charges Within Statute of
Limitations With No Mention of WSLA (Federal Tax Crimes Blog 9/19/21), here.
Further, the WSLA is not even mentioned in the DOJ Criminal Tax Manual. SEE DOJ
CTM 7.00 Statute of Limitations (viewed 3/31/23), here. Apparently
because of its rarity of use in tax crimes, the ABA has recommended ”Guidance
making it clear that the Service’s Criminal Investigations division will not
recommend prosecution for charges that otherwise would be untimely except
through the operation of the Wartime Suspension Limitations Act,” I discuss and
link this recommendation in ABA Tax Section Recommendation to IRS for
Priority Guidance to Disavow Application of WSLA and Further Comments Re Same
(Federal Tax Crimes Blog 7/23/21), here;
and  More on the Wartime Suspension of
Limitations Act (WSLA) (Federal Tax Crimes Blog 2/20/21), here.  Nevertheless, the WSLA has been applied in
some tax offense and defraud conspiracies. See in addition to cases in the cited blogs, e.g., Daugerdas v. United
States,  2021 WL 603068 (S.D. N.Y.
2/16/21), here (noting
the Afghanistan and Iraq resolutions and stating: “Accordingly, beginning in
September 2001, the WLSA tolled the statute of limitations on the conspiracy to
defraud the United States [for tax objects of conspiracy] and mail fraud
charges. See Wells Fargo Bank, 972 F. Supp. 2d 593 at 613–14 (holding
that the WSLA suspended the ten-year statute of limitations for certain fraud
claims arising prior to June 25, 2002 because hostilities had not ended).)”;
and United States v. Wellington, 2022 WL 3345759 (D. N.M. 2022), here (Defendant charged “violation of 18 U.S.C. §
371, Conspiracy to Commit Tax Evasion and Defraud the United States;” held WSLA
applied based on holding in United States v. Nishiie, 996 F.3d 1013,
1028 (9th Cir. 2021), cert. denied, 142 S. Ct. 2653 (U.S. Apr. 25, 2022) and
also citing Wells Fargo.)

Although the Government rarely invokes the WSLA, I presume it did in Daugerdas and know it did in Wellington. For example, see U.S. Response in Wellington asserting WSLA (at pp. 2-3), here:

2. The key to those potential applications is “war or
Congress has enacted a specific authorization for the use of the Armed Forces.”
The United States is not now at war, but there are some specific authorizations
for the use of military force. As news reports have recently discussed, the Senate
has voted to revoke the AUMF for the Iraqi War. See Barbara Sprunt & Susan Davis, Senate votes to repeal Iraq War
authorization (NPR 3/29/23), here (discussing the Senate action and noting that
the House must now act). Just focusing on that Iraq War AUMF, if the revocation is enacted (must pass
House), it will cause the WSLA 5-year statute on that AUMF to start. But there
was a separate AUMF for the 9/11/01 attack (Afghanistan) and even earlier AUMFs
that have not been repealed. See P.L. 107-40, 115 STAT. 224 9/18/01, here; and see
the Caveat in BA Tax Section
Recommendation to IRS for Priority Guidance to Disavow Application of WSLA and
Further Comments Re Same (Federal Tax Crimes Blog 7/23/21), here,
that are still effective and could potentially still require suspension of the criminal
statutes of limitations even if the Iraq AUMF is revoked.

3. I have stated my concern that § 371’s defraud conspiracy
will not support application of the WSLA because the term “defraud” in 18 USC §
371 (defining offense and defraud conspiracies) is broader than the term “fraud”
as generally used in criminal or related statutes such as § 3287. See More on
the Wartime Suspension of Limitations Act (WSLA) (2/20/21), here,
¶¶ 3 and 4. In both Daugerdas and Wellington the courts thought
it did to apply the WSLA to the defraud conspiracy. I think that was simply a gut holding assuming that “fraud” in § 3287 and “defraud” in § 371 are coextensive; the
two terms are not coextensive because of the atypical and broader interpretation the Court
put on § 371’s use of “defraud” in Hammerschmidt
v. United States, 265 U.S. 182 (1924).

 a, [Added 4/2/23 1:45pm]: Upon reflection, I am not sure that the Hammerschmidt holding that the § 371 “defraud” conspiracy is boader than “fraud” as used in the WSLA will foreclose using a defraud conspiracy to invoke the WSLA. Conceivably, the “defraud” conspiracy as interpreted in Hammerschmidt includes two types of objects:  (i) a defraud conspiracy with an object to commit fraud; and (ii) a defraud conspiracy with an object to defraud without an object to commit fraud. A special interrogatory or a question on the verdict form might answer which of the two types were used. Cf. United States v. Pursley, 22 F.4th 586, 591-593 (5th Cir. 1/13/22). A special interrogatory could be used to determine ensure that the jury determines which type of object is involved.

b. Use of special interrogatories in criminal cases have received much judicial and scholarly discussion, the concern being that special interrogatories can “lead” the jury to conviction and thus are anti-defendant.  They are used, nevertheless for specialized needs such as the statute of limitations which is a jury issue if the defense of the statute of limitations is in issue in the case and a defendant requests an appropriate submission of the statute of limitations issue to the jury. I won’t get into the nuances of the concerns about special interrogatories, but just cite generally a recent article:  But see e..g. Charles Eric Hintz, Fair Questions: A Call and Proposal for Using General Verdicts with Special Interrogatories to Prevent Biased and Unjust Convictions, 4 U.C. Davis L. Rev. Online 43 (2021), here; and Kate H. Nepveu, Beyond “Guilty” or “Not Guilty”: Giving Special Verdicts in Criminal Jury Trials, 21 Yale L. & Pol’y Rev. 263 (2003), here.

c. I offer an example of how a special interrogatory may be framed in a defraud conspiracy case potentially involving the WSLA and the distinction between defraud and fraud. The judge would give the jury standard jury instructions about the defraud conspiracy (based on the Hammerchmidt broad reading of defraud and explaining the that defraud conspiracy includes both actual fraud or the broader defraud definition of Hammerschmidt (this type of iinstruction would be required to properly instruct the jury that it could convict for defraud which does not require fraud).  The judge would submit to the jury a general jury verdict (Guilty/Not Guilty) form. The judge contemporaneously would submit a sealed envelope with a separate form to be opened and completed only if and after the jury rendered a unanimous general Guilty verdict for the defraud conspiracy defined per Hammerschmidt.  determines unanimously Guilt for the defraud conspiracy. The form inside the sealed envelope would ask whether the jury can find beyond a reasonable doubt that the defraud conspiracy for which the jury found the defendant guilty included at least one overt act with the intent to commit actual fraud (properly defined) after the starting date for the applicable statute of limitations (based on the WSLA).

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Taking an En Banc Vote

The original panel opinion in Devillier v. State of Texas, No. 21-40750 (Nov. 28, 2022) (footnotes omitted), said that in federal court “the Fifth Amendment Takings Clause as applied to the states through the Fourteenth Amendment does not provide a right of action for takings claims against a state,” but in state court, “[t]he Supreme Court of Texas recognizes takings claims under the federal and state constitutions, with differing remedies and constraints turning on the character and nature of the taking ….” Devillier v. State of Texas, No. 21-40750 (Nov. 28, 2022) (footnotes omitted).

The panel revised its opinion in January to say only: “The State of Texas appeals the district court’s decision that Plaintiffs’ federal Taking Clause claims against the State may proceed in federal court. Because we hold that the Fifth Amendment Takings Clause as applied to the states through the Fourteenth Amendment does not provide a right of action for takings claims against a state, we VACATE the district court’s decision and REMAND for further proceedings. Nothing in this opinion is intended to displace the Supreme Court of Texas’s role as the sole determinant of Texas state law.” A detailed footnote described the Texas Supreme Court’s holdings in this area.

An en banc vote proceeded, which produced an 11-5 vote against rehearing, released on March 23, 2023:

 

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