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THE PREEMINENT DEFENSE LITIGATION FIRM

At any given time, our more than 1,000 attorneys are engaged in as many as
100,000 defense and coverage matters, with many defending clients in various
local, state and federal courts.


FIRM FACTS

--------------------------------------------------------------------------------

Accomplished litigation, coverage and trial attorneys

1,140

Ranking in the AmLaw 200 by gross revenue

107

Years of defending domestic and international clients

46

Clients represented in 2023

4,731

Defense and coverage matters handled in 2023

120,580


FEATURED

News Brief


WILSON ELSER IN TOP 40 OF THE 2023 LEOPARD FIRM INDEX RANKING OF 200 LAW FIRMS

February 16, 2024

News Brief


NATIONAL TRIAL TEAM TO HOST 2024 MOCK TRIAL INVITATIONAL

February 15, 2024

News Brief


U.S. NEWS & WORLD REPORT NAMES WILSON ELSER AMONG THE 2024 BEST COMPANIES TO
WORK FOR: LAW FIRMS

January 31, 2024


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FIRM HIGHLIGHTS

PreviousPrevious
Events
Recreational Boating Committee: Recent Legal Developments
Otis Felder (Partner-Los Angeles, CA) has been invited to join the Recreational
Boating Committee panel at the 125th Anniversary Celebration Kickoff of the
Maritime Law Association of the United States, to be held May 1–3, 2024, in New
York City. Other speakers are from the U.S. Coast Guard and the American Boat
and Yacht Council. Otis will address developments in marine recreation law
following his involvement in two Ninth Circuit cases. Topics include the
enforceability of liability waivers under Ehart v. Lahaina Divers Inc.;
limitation proceedings following Williams Sports Rentals Inc. v. Willis (In re
Complaint & Petition of Williams Sports Rentals, Inc.); and indemnity and duty
to defend. Otis has been a Proctor Member in the MLAUS since 2020 and has spoken
at many of its past events on various topics, including marine insurance and
maritime security issues.
Read more
Publications
Nevada Reaffirms Inquiry Notice Standards for Medical Malpractice Statutes of
Limitations
Igtiben v. Eighth Jud. Dist. Ct., 140 Nev. Adv. Op. 9 (App. Feb. 22, 2024),
concerned a prisoner who was transported to a hospital for medical treatment and
died in the hospital after treatment began. At the time, the applicable statute
of limitations contained in NRS 41A.097(2) was “1 year after the plaintiff
discovers or through the use of reasonable diligence should have discovered the
injury….” This also is known as inquiry notice. Applied here, the prisoner’s
mother obtained his complete hospital medical chart six weeks after the death.
Approximately fourteen months after the death, a forensic pathologist the family
hired concluded professional negligence contributed to the death. The family
filed their lawsuit eight months after receiving the forensic pathologist’s
report. The hospital and physician moved to dismiss, arguing the family’s
one-year statute of limitations had expired. The district court denied the
motion, concluding a genuine issue of material fact was present because the
family filed suit within eight months of the pathologist’s report. Nevada’s
Court of Appeals reversed and directed the district court to dismiss the
complaint. In Nevada, inquiry notice for potential medical malpractice begins
when the plaintiff or the plaintiff’s representative receives “all relevant
medical records.” Applied here, the only relevant medical records were the
hospital records. Thus, the family had the information necessary to investigate
the care and treatment and trigger inquiry notice just six weeks after the
death. The date that the forensic pathologist provided his report was
irrelevant. Igtiben might provide greater certainty to providers and patients as
they evaluate potential professional negligence claims. However, it underscores
the importance of careful responses to requests for medical records because if
other “relevant” records existed but were not provided, inquiry notice might not
be triggered.  
Read more
Events
Artificial Intelligence and Privacy Practices: A Global Implication
Jonathan Meer (Partner-New York, NY) will join a webinar panel on April 10,
2024, with Vered Zlaikha, Head of Cyber Affairs and AI Practice at Lipa Meir,
and Shay Simkin, Global Head of Howden Cyber, on “Artificial Intelligence and
Privacy Practices: Global Implications.” Since the flow of information has gone
global, privacy laws in various jurisdictions have become an issue for most
organizations, and the rise of artificial intelligence coupled with cyber risks
creates more risk than ever. This webinar will address some of those issues in
the United States and Israel, and where the changing landscape might take us in
2024.
Read more
Publications
New Jersey Joins Growing Number of States to Enact a Comprehensive Data Privacy
Law
On January 16, 2024, New Jersey Governor Phil Murphy signed into law the New
Jersey Data Protection Act, making New Jersey the thirteenth state to enact a
comprehensive state privacy law. This law imposes a wide range of obligations on
businesses and nonprofits that collect and use personal data of New Jersey
residents, including notification requirements to consumers of collection and
disclosure of their personal data. Following the example of California and
Colorado, where the data privacy laws call for promulgation of implementing
regulations, the Director of the Division of Consumer Affairs in the Department
of Law and Public Safety is empowered to enact rules and regulations necessary
to effectuate the Act’s purposes. The Act becomes effective on January 16, 2025.
Applicability  The Act will apply to entities that conduct business in New
Jersey or produce products or services targeted to New Jersey residents.
Specifically, the Act applies to controllers that annually process the personal
data of 100,000 or more consumers, excluding data that is processed solely for
the purpose of completing a payment transaction. Alternatively, the Act will
apply to the organizations that meet the “sales threshold,” that is, if the
organization controls or processes the personal data of at least 25,000
consumers and derives revenue or receives a discount on the price of any goods
or services from the sale of personal data.  While the threshold requirements
for applicability are fairly standard, organizations must remain vigilant
concerning their information practices involving cookies, pixels and similar
tracking technologies. Collecting cookies potentially (and sometimes,
inadvertently) makes an entity subject to the Act under the sales threshold.
Specifically, the term “sale” is defined broadly to mean “the sharing,
disclosing, or transferring of personal data for monetary or other valuable
consideration by the controller to a third party.” This definition is similar to
the one used by the California Consumer Privacy Act. As seen from the California
Attorney General’s enforcement efforts, where a business discloses or makes
available consumers’ personal data to third parties through the use of online
tracking technologies such as pixels, web beacons, software developer kits,
third-party libraries and cookies, in exchange for monetary or other valuable
consideration, including for analytics purposes or for free or discounted
services, such practices meet the definition of a “sale.” See The People of the
State of California v. Sephora USA, Inc., Final Judgment and Permanent
Injunction.  Pursuant to the Act, “controller” means an individual or legal
entity that, alone or jointly with others, determines the purpose for and
methods of processing personal data. This means that the law will apply to
nonprofits, distinguishing the Act from most other comprehensive consumer
privacy laws but following the example of Colorado, Delaware and Oregon. In
terms of covered data, the Act regulates practices relating to personal data,
that is, any information linked or reasonably linkable to an identified or
identifiable person. De-identified data or publicly available information is not
within the scope of the Act.  Controller Obligations  The Act imposes several
obligations on controllers. As an initial matter, it requires that controllers
limit the collection of personal data to what is adequate, relevant and
reasonably necessary in relation to the purposes for which such data is
processed. Furthermore, the controller’s information practices and purposes for
processing must be disclosed to the consumers in a privacy notice, as discussed
below. It also is incumbent upon the controller to establish, implement and
maintain administrative, technical and physical data security practices. The Act
specifies that this obligation extends to securing personal data from
unauthorized access during both storage and use. It also requires the controller
to assess and ensure that the security practices are appropriate in relation to
the volume and type of data the entity is processing. The appropriateness of the
security practices is likely to be addressed in the forthcoming implementing
regulations.  As a baseline rule, processing of sensitive data is not permitted
unless the controller first obtains consent. Consent must be manifested as a
clear affirmative act signifying a consumer’s freely given, specific, informed
and unambiguous agreement to allow processing of personal data pertaining to the
consumer. Significantly, acceptance of general or broad terms of use will not
satisfy the consent requirement, nor will any agreement obtained through the use
of “dark patterns.”* In other words, in contrast to, for example the California
Consumer Privacy Act, the Act requires opt-in treatment for processing of
sensitive data. The definition of sensitive data is similar to those of the
other state laws but also includes a broader category of financial information
as well as gender identity status as transgender or nonbinary. Personal data
collected from a known child is included in the definition of sensitive data,
and must be processed in accordance with the Children’s Online Privacy
Protection Act.  The controller also has a duty to provide consumers with a
privacy notice that is reasonably accessible, clear and meaningful. The notice
must include, but may not be limited to:  The categories of the personal data
that the controller processes The purpose for processing personal data  The
categories of all third parties to which the controller may disclose a
consumer’s personal data The categories of personal data that the controller
shares with third parties How individuals may exercise their consumer rights The
process by which the controller notifies consumers of material changes to the
privacy notice, along with the effective date of the notice  An active
electronic mail address or other online mechanism that the consumer may use to
contact the controller. Like several other state privacy laws, the Act mandates
that controllers enter into written agreements with third parties that process
data on behalf of the controller. These agreements should govern the processing
procedures, and the Act provides a list of specific requirements to be addressed
in such data processing agreements. The Act also imposes a duty on controllers
to conduct a data protection assessment prior to processing of personal data
that would present a heightened risk of harm to individuals. These requirements
are similar to the draft rules presented by the California Privacy Protection
Agency in December 2023. Essentially, the risk assessment (California term for
data protection assessment) will require businesses to create a robust inventory
of their processing activities and subsequently weigh any benefits of such
processing against potential risks to individuals’ privacy. The Act lists
targeted advertising, profiling, selling personal data and processing sensitive
data as examples of what constitutes heightened risk.  Consumer Rights  The Act
grants consumers rights similar to those of the other state privacy laws.
Individuals have the right to (1) confirm processing of the consumer’s personal
data, (2) correct inaccuracies, (3) make deletions, (4) determine data
portability, and (5) opt out of processing for the purposes of sale of their
personal information, targeted advertising and profiling. In addition, the Act
creates certain opt-in requirements for minors. A controller may not process
personal data for targeted advertising, sale or profiling without express
consent from the consumer, where the controller knows, or willfully disregards,
that the consumer is at least 13 years old but younger than 17 years old. The
Act has additional requirements regarding opt-out methods. Entities that fall
within the Act’s application and engage in targeted advertising or sale of
personal data must comply with opt-out requests delivered passively through
Universal Opt-Out Mechanisms (UOOMs). UOOMs allow users to universally express
to all sites their preference to not be traced on the internet. The duty to
comply with UOOM requests will start six months after the Act’s effective date.
Notably, controllers must not make use of a default setting that opts a consumer
into the processing or sale of personal data, unless the controller has
determined that the consumer has selected such default setting and the selection
clearly represents the consumer’s affirmative, freely given and unambiguous
choice to opt in. This provision is interesting, given that the opt-in is not
required for processing non-online personal data for the purposes of sale, but
appears to be required for online data.  Enforcement  The New Jersey Division of
Consumer Affairs in the Department of Law and Public Safety will have the
authority to enforce the Act. There is a 30-day cure period that will expire 18
months after the effective date. The Act declares that a violation of its
provisions shall be “an unlawful practice and a violation of P.L. 1960, C. 39
(C.56:8-1 et seq.)” (the New Jersey Consumer Fraud Act). Initial violations are
punishable with fines up to $10,000, and subsequent violations up to $20,000.
Notably, no private right of action is specifically available under the Act. 
Conclusion  Organizations with a national footprint already familiar with
similar data privacy laws will need to update their compliance to meet New
Jersey–specific requirements. For some organizations with New Jersey–centric
operations, this new law may be the first time they need to consider building a
comprehensive consumer privacy program. Entities that may become subject to the
New Jersey Data Protection Act will have to carefully review their information
practices, draft privacy policies and develop comprehensive internal compliance
programs. A controller that is subject to the Act also should be mindful of, and
prepare for, any implementing regulations to be issued by the Director of the
Division of Consumer Affairs in the Department of Law and Public Safety.
Elisabeth Axberger, a recent law graduate, is a co-author of this article. * The
California Privacy Rights Act regulations offer extensive guidance and examples
of dark patterns. For example, the use of confusing language or interactive
elements is a dark pattern, as would be the use of “Yes” or “No” choices next to
the statement “Do Not Sell or Share My Personal Information.” This is a
confusing choice due to the double negative.  
Read more
Client Wins
Allin, Del Gatto and Bracht Obtain Dismissal of Defamation Case Against
Liquidator in UK Bankruptcy
Phoenix, Arizona, partners Taylor Allin and Brian Del Gatto and associate Blake
Bracht obtained dismissal of a defamation case against our client, a liquidator
in a UK bankruptcy who was appointed to oversee liquidation of the plaintiffs’
assets. Plaintiffs alleged our client made numerous harassing, threatening phone
calls and sent text messages to them and their U.S. business partners, forcing
the failure of multimillion-dollar business deals. Taylor, Brian and Blake
argued the allegations were false and being used to leverage a better settlement
of the bankruptcy debts in the United Kingdom. They lost a Motion to Dismiss on
jurisdiction early, and after completing discovery and establishing no
communications from the United States to the UK could be proven by evidence, the
U.S. District Court, District of Arizona ordered an evidentiary hearing on the
jurisdiction issue. The plaintiffs made false statements to the court about why
they could not attend the evidentiary hearing and had it postponed multiple
times. The Wilson Elser team filed a motion for sanctions once evidence of
plaintiffs' false representations to the court were definitively established.
The court agreed, noting plaintiffs were purposely avoiding attending the
evidentiary hearing and unreasonably delaying a judicial decision. Wilson Elser
successfully argued that the case should be dismissed with prejudice as lesser
sanctions would be inappropriate. 
Read more
News
Hattar, Lacy, Ledwin, Vago, Flannery & Cortellessa Named to Hudson Valley’s Top
Lawyers 2024
Six White Plains, New York, attorneys were named to Hudson Valley Magazine’s
2024 Top Lawyers Guide. This year's awardees are partners Jacqueline Hattar
(Civil Law Litigation), Mark Ledwin (Banking and Financial), Joel Vago (Civil
Law Litigation), Patricia Lacy (Medical Malpractice Defense), John Flannery
(Professional Malpractice Non-Medical Defense), and Of Counsel William
Cortellessa (Consumer Debt Law). Hudson Valley’s annual list features attorneys
selected by the magazine following an online peer review process and
investigation conducted by a national research firm. The magazine’s final review
of the results determines the top lawyers in the region across a range of
practice areas. Multi-year awardee and partner Jackie Hattar notes, "This is a
great honor for the firm and attorneys who practice in the Hudson Valley, and
recognition of the excellence of our attorneys."  
Read more
Events
Understanding and Navigating Salary Transparency Laws: A Multistate Perspective
Celena Mayo (Partner-New York, NY) and Olivia Orlando-Donovan (Of Counsel-White
Plains, New York) will present a Wilson Elser Forum webinar on April 4, 2024.
“Understanding and Navigating Salary Transparency Laws: A Multistate
Perspective” delves into the complexities of salary transparency laws across
various states, offering insights on compliance challenges, best practices and
real-world applications through case studies and interactive discussions. Celena
and Olivia will provide attendees with valuable knowledge on the evolving legal
landscape of salary transparency while exploring practical strategies to help
ensure compliance and mitigate risks. Don't miss this opportunity to enhance
your knowledge of employment law and stay ahead of the curve.
Read more
Client Wins
O’Brien and Dutton Show Indiana Law Does Not Permit Third-Party Bad Faith
Actions Against Insurance Carriers
Edward M. O’Brien (Partner-Louisville, KY/Indianapolis, IN) and Cyrus G. Dutton
IV (Associate-Louisville, KY) represented an insurer in a case in which
plaintiff was involved in a motor vehicle accident and asserted a claim against
an automobile liability insurer, our client, for "unfair claims violations and
bad faith” – a third-party bad faith claim. Specifically, the plaintiff alleged
that our client "failed and refused to comply with Indiana's Unfair Claims
Settlement Practices Act". Edward and Cyrus moved to dismiss for failure to
state a claim for which relief can be granted as Indiana law does not recognize
or permit third-party bad faith actions against insurance carriers. Cyrus argued
the motion before Clark County Superior Court, and the motion was granted.
Read more
Publications
Oregon Supreme Court Reduces $10 Million Punitive Damages Shock Verdict
Trebelhorn v. Prime Wimbledon SPE, LLC, 372 Or. 27 (2024), is a premises
liability case where a tenant at an apartment complex alleged he was injured
when a concrete walkway gave way beneath him, causing a meniscal tear that
required surgery. He sued the landlord, seeking $45,000 in economic damages and
$350,000 in noneconomic damages. The landlord admitted negligence but disputed
damages. The tenant conducted extensive discovery and sought to portray the
landlord as a slumlord who chose not to fix known problems at the complex. The
plaintiff sought punitive damages at trial and the trial court allowed the
request to go to the jury. The jury awarded the full economic damages, $250,000
in noneconomic damages and $10,000,000 in punitive damages. After hearing
post-trial motions, the trial court concluded the maximum constitutionally
permissible ratio of compensatory damages to punitive damages was nine times the
actual damages the jury awarded. The $10,000,000 punitive damages award was
reduced to $2,660,373.54. Both sides appealed. Oregon’s Supreme Court affirmed
the trial court’s ruling. It extensively examined the factual record as applied
to its case law concerning the difficult task of assessing when a punitive
damages award is constitutionally problematic. Ultimately, it concluded the
tenant had not met his burden to allow the original $10,000,000 award and its
33:1 ratio to stand. The 33:1 ratio “is dramatically greater than the
single-digit ratio that the [United States] Supreme Court has suggested is –
except in extraordinary circumstances – the limit of what due process will
permit, no matter what the tort.” The court reiterated that determining the
proper ratio is not a simple mathematical exercise and other ratios might be
proper in other cases. “Although we do not rule out the possibility that some
amount greater than (or less than) a 9:1 ratio might be the maximum
constitutionally permitted award in a case like this,” it was a constitutionally
permissible ratio here.  
Read more
News
Billek Reappointed to the New Jersey Joint Legislative Committee on Ethical
Standards
Max Billek (Partner-Madison, NJ) has been re-appointed to the state’s Joint
Legislative Committee on Ethical Standards for the 2024-2025 legislative
session, having served during the 2020-2024 legislative sessions. Currently a
bipartisan committee composed of eight public members, the Joint Committee is
responsible for administering the Conflicts of Interest Law and the Code of
Ethics for members of the Legislature and officers and employees in the
legislative branch of government. The Joint Committee investigates, either on
its own initiative or in response to a complaint, possible violations of the
Law, Code or Joint Rule 19 and is empowered to impose a fine up to $10,000 or
suspend from office an officer or employee of the Legislature for violations,
and it may fine a legislator up to $10,000 and recommend disciplinary action to
the legislator's House.
Read more
Events
Artificial Intelligence and Privacy Practices: A Global Implication
Jonathan Meer (Partner-New York, NY) will join a webinar panel on April 10,
2024, with Vered Zlaikha, Head of Cyber Affairs and AI Practice at Lipa Meir,
and Shay Simkin, Global Head of Howden Cyber, on “Artificial Intelligence and
Privacy Practices: Global Implications.” Since the flow of information has gone
global, privacy laws in various jurisdictions have become an issue for most
organizations, and the rise of artificial intelligence coupled with cyber risks
creates more risk than ever. This webinar will address some of those issues in
the United States and Israel, and where the changing landscape might take us in
2024.
Read more
Publications
Nevada Reaffirms Inquiry Notice Standards for Medical Malpractice Statutes of
Limitations
Igtiben v. Eighth Jud. Dist. Ct., 140 Nev. Adv. Op. 9 (App. Feb. 22, 2024),
concerned a prisoner who was transported to a hospital for medical treatment and
died in the hospital after treatment began. At the time, the applicable statute
of limitations contained in NRS 41A.097(2) was “1 year after the plaintiff
discovers or through the use of reasonable diligence should have discovered the
injury….” This also is known as inquiry notice. Applied here, the prisoner’s
mother obtained his complete hospital medical chart six weeks after the death.
Approximately fourteen months after the death, a forensic pathologist the family
hired concluded professional negligence contributed to the death. The family
filed their lawsuit eight months after receiving the forensic pathologist’s
report. The hospital and physician moved to dismiss, arguing the family’s
one-year statute of limitations had expired. The district court denied the
motion, concluding a genuine issue of material fact was present because the
family filed suit within eight months of the pathologist’s report. Nevada’s
Court of Appeals reversed and directed the district court to dismiss the
complaint. In Nevada, inquiry notice for potential medical malpractice begins
when the plaintiff or the plaintiff’s representative receives “all relevant
medical records.” Applied here, the only relevant medical records were the
hospital records. Thus, the family had the information necessary to investigate
the care and treatment and trigger inquiry notice just six weeks after the
death. The date that the forensic pathologist provided his report was
irrelevant. Igtiben might provide greater certainty to providers and patients as
they evaluate potential professional negligence claims. However, it underscores
the importance of careful responses to requests for medical records because if
other “relevant” records existed but were not provided, inquiry notice might not
be triggered.  
Read more
Events
Recreational Boating Committee: Recent Legal Developments
Otis Felder (Partner-Los Angeles, CA) has been invited to join the Recreational
Boating Committee panel at the 125th Anniversary Celebration Kickoff of the
Maritime Law Association of the United States, to be held May 1–3, 2024, in New
York City. Other speakers are from the U.S. Coast Guard and the American Boat
and Yacht Council. Otis will address developments in marine recreation law
following his involvement in two Ninth Circuit cases. Topics include the
enforceability of liability waivers under Ehart v. Lahaina Divers Inc.;
limitation proceedings following Williams Sports Rentals Inc. v. Willis (In re
Complaint & Petition of Williams Sports Rentals, Inc.); and indemnity and duty
to defend. Otis has been a Proctor Member in the MLAUS since 2020 and has spoken
at many of its past events on various topics, including marine insurance and
maritime security issues.
Read more
Publications
New Jersey Joins Growing Number of States to Enact a Comprehensive Data Privacy
Law
On January 16, 2024, New Jersey Governor Phil Murphy signed into law the New
Jersey Data Protection Act, making New Jersey the thirteenth state to enact a
comprehensive state privacy law. This law imposes a wide range of obligations on
businesses and nonprofits that collect and use personal data of New Jersey
residents, including notification requirements to consumers of collection and
disclosure of their personal data. Following the example of California and
Colorado, where the data privacy laws call for promulgation of implementing
regulations, the Director of the Division of Consumer Affairs in the Department
of Law and Public Safety is empowered to enact rules and regulations necessary
to effectuate the Act’s purposes. The Act becomes effective on January 16, 2025.
Applicability  The Act will apply to entities that conduct business in New
Jersey or produce products or services targeted to New Jersey residents.
Specifically, the Act applies to controllers that annually process the personal
data of 100,000 or more consumers, excluding data that is processed solely for
the purpose of completing a payment transaction. Alternatively, the Act will
apply to the organizations that meet the “sales threshold,” that is, if the
organization controls or processes the personal data of at least 25,000
consumers and derives revenue or receives a discount on the price of any goods
or services from the sale of personal data.  While the threshold requirements
for applicability are fairly standard, organizations must remain vigilant
concerning their information practices involving cookies, pixels and similar
tracking technologies. Collecting cookies potentially (and sometimes,
inadvertently) makes an entity subject to the Act under the sales threshold.
Specifically, the term “sale” is defined broadly to mean “the sharing,
disclosing, or transferring of personal data for monetary or other valuable
consideration by the controller to a third party.” This definition is similar to
the one used by the California Consumer Privacy Act. As seen from the California
Attorney General’s enforcement efforts, where a business discloses or makes
available consumers’ personal data to third parties through the use of online
tracking technologies such as pixels, web beacons, software developer kits,
third-party libraries and cookies, in exchange for monetary or other valuable
consideration, including for analytics purposes or for free or discounted
services, such practices meet the definition of a “sale.” See The People of the
State of California v. Sephora USA, Inc., Final Judgment and Permanent
Injunction.  Pursuant to the Act, “controller” means an individual or legal
entity that, alone or jointly with others, determines the purpose for and
methods of processing personal data. This means that the law will apply to
nonprofits, distinguishing the Act from most other comprehensive consumer
privacy laws but following the example of Colorado, Delaware and Oregon. In
terms of covered data, the Act regulates practices relating to personal data,
that is, any information linked or reasonably linkable to an identified or
identifiable person. De-identified data or publicly available information is not
within the scope of the Act.  Controller Obligations  The Act imposes several
obligations on controllers. As an initial matter, it requires that controllers
limit the collection of personal data to what is adequate, relevant and
reasonably necessary in relation to the purposes for which such data is
processed. Furthermore, the controller’s information practices and purposes for
processing must be disclosed to the consumers in a privacy notice, as discussed
below. It also is incumbent upon the controller to establish, implement and
maintain administrative, technical and physical data security practices. The Act
specifies that this obligation extends to securing personal data from
unauthorized access during both storage and use. It also requires the controller
to assess and ensure that the security practices are appropriate in relation to
the volume and type of data the entity is processing. The appropriateness of the
security practices is likely to be addressed in the forthcoming implementing
regulations.  As a baseline rule, processing of sensitive data is not permitted
unless the controller first obtains consent. Consent must be manifested as a
clear affirmative act signifying a consumer’s freely given, specific, informed
and unambiguous agreement to allow processing of personal data pertaining to the
consumer. Significantly, acceptance of general or broad terms of use will not
satisfy the consent requirement, nor will any agreement obtained through the use
of “dark patterns.”* In other words, in contrast to, for example the California
Consumer Privacy Act, the Act requires opt-in treatment for processing of
sensitive data. The definition of sensitive data is similar to those of the
other state laws but also includes a broader category of financial information
as well as gender identity status as transgender or nonbinary. Personal data
collected from a known child is included in the definition of sensitive data,
and must be processed in accordance with the Children’s Online Privacy
Protection Act.  The controller also has a duty to provide consumers with a
privacy notice that is reasonably accessible, clear and meaningful. The notice
must include, but may not be limited to:  The categories of the personal data
that the controller processes The purpose for processing personal data  The
categories of all third parties to which the controller may disclose a
consumer’s personal data The categories of personal data that the controller
shares with third parties How individuals may exercise their consumer rights The
process by which the controller notifies consumers of material changes to the
privacy notice, along with the effective date of the notice  An active
electronic mail address or other online mechanism that the consumer may use to
contact the controller. Like several other state privacy laws, the Act mandates
that controllers enter into written agreements with third parties that process
data on behalf of the controller. These agreements should govern the processing
procedures, and the Act provides a list of specific requirements to be addressed
in such data processing agreements. The Act also imposes a duty on controllers
to conduct a data protection assessment prior to processing of personal data
that would present a heightened risk of harm to individuals. These requirements
are similar to the draft rules presented by the California Privacy Protection
Agency in December 2023. Essentially, the risk assessment (California term for
data protection assessment) will require businesses to create a robust inventory
of their processing activities and subsequently weigh any benefits of such
processing against potential risks to individuals’ privacy. The Act lists
targeted advertising, profiling, selling personal data and processing sensitive
data as examples of what constitutes heightened risk.  Consumer Rights  The Act
grants consumers rights similar to those of the other state privacy laws.
Individuals have the right to (1) confirm processing of the consumer’s personal
data, (2) correct inaccuracies, (3) make deletions, (4) determine data
portability, and (5) opt out of processing for the purposes of sale of their
personal information, targeted advertising and profiling. In addition, the Act
creates certain opt-in requirements for minors. A controller may not process
personal data for targeted advertising, sale or profiling without express
consent from the consumer, where the controller knows, or willfully disregards,
that the consumer is at least 13 years old but younger than 17 years old. The
Act has additional requirements regarding opt-out methods. Entities that fall
within the Act’s application and engage in targeted advertising or sale of
personal data must comply with opt-out requests delivered passively through
Universal Opt-Out Mechanisms (UOOMs). UOOMs allow users to universally express
to all sites their preference to not be traced on the internet. The duty to
comply with UOOM requests will start six months after the Act’s effective date.
Notably, controllers must not make use of a default setting that opts a consumer
into the processing or sale of personal data, unless the controller has
determined that the consumer has selected such default setting and the selection
clearly represents the consumer’s affirmative, freely given and unambiguous
choice to opt in. This provision is interesting, given that the opt-in is not
required for processing non-online personal data for the purposes of sale, but
appears to be required for online data.  Enforcement  The New Jersey Division of
Consumer Affairs in the Department of Law and Public Safety will have the
authority to enforce the Act. There is a 30-day cure period that will expire 18
months after the effective date. The Act declares that a violation of its
provisions shall be “an unlawful practice and a violation of P.L. 1960, C. 39
(C.56:8-1 et seq.)” (the New Jersey Consumer Fraud Act). Initial violations are
punishable with fines up to $10,000, and subsequent violations up to $20,000.
Notably, no private right of action is specifically available under the Act. 
Conclusion  Organizations with a national footprint already familiar with
similar data privacy laws will need to update their compliance to meet New
Jersey–specific requirements. For some organizations with New Jersey–centric
operations, this new law may be the first time they need to consider building a
comprehensive consumer privacy program. Entities that may become subject to the
New Jersey Data Protection Act will have to carefully review their information
practices, draft privacy policies and develop comprehensive internal compliance
programs. A controller that is subject to the Act also should be mindful of, and
prepare for, any implementing regulations to be issued by the Director of the
Division of Consumer Affairs in the Department of Law and Public Safety.
Elisabeth Axberger, a recent law graduate, is a co-author of this article. * The
California Privacy Rights Act regulations offer extensive guidance and examples
of dark patterns. For example, the use of confusing language or interactive
elements is a dark pattern, as would be the use of “Yes” or “No” choices next to
the statement “Do Not Sell or Share My Personal Information.” This is a
confusing choice due to the double negative.  
Read more
Client Wins
Allin, Del Gatto and Bracht Obtain Dismissal of Defamation Case Against
Liquidator in UK Bankruptcy
Phoenix, Arizona, partners Taylor Allin and Brian Del Gatto and associate Blake
Bracht obtained dismissal of a defamation case against our client, a liquidator
in a UK bankruptcy who was appointed to oversee liquidation of the plaintiffs’
assets. Plaintiffs alleged our client made numerous harassing, threatening phone
calls and sent text messages to them and their U.S. business partners, forcing
the failure of multimillion-dollar business deals. Taylor, Brian and Blake
argued the allegations were false and being used to leverage a better settlement
of the bankruptcy debts in the United Kingdom. They lost a Motion to Dismiss on
jurisdiction early, and after completing discovery and establishing no
communications from the United States to the UK could be proven by evidence, the
U.S. District Court, District of Arizona ordered an evidentiary hearing on the
jurisdiction issue. The plaintiffs made false statements to the court about why
they could not attend the evidentiary hearing and had it postponed multiple
times. The Wilson Elser team filed a motion for sanctions once evidence of
plaintiffs' false representations to the court were definitively established.
The court agreed, noting plaintiffs were purposely avoiding attending the
evidentiary hearing and unreasonably delaying a judicial decision. Wilson Elser
successfully argued that the case should be dismissed with prejudice as lesser
sanctions would be inappropriate. 
Read more
News
Hattar, Lacy, Ledwin, Vago, Flannery & Cortellessa Named to Hudson Valley’s Top
Lawyers 2024
Six White Plains, New York, attorneys were named to Hudson Valley Magazine’s
2024 Top Lawyers Guide. This year's awardees are partners Jacqueline Hattar
(Civil Law Litigation), Mark Ledwin (Banking and Financial), Joel Vago (Civil
Law Litigation), Patricia Lacy (Medical Malpractice Defense), John Flannery
(Professional Malpractice Non-Medical Defense), and Of Counsel William
Cortellessa (Consumer Debt Law). Hudson Valley’s annual list features attorneys
selected by the magazine following an online peer review process and
investigation conducted by a national research firm. The magazine’s final review
of the results determines the top lawyers in the region across a range of
practice areas. Multi-year awardee and partner Jackie Hattar notes, "This is a
great honor for the firm and attorneys who practice in the Hudson Valley, and
recognition of the excellence of our attorneys."  
Read more
Events
Understanding and Navigating Salary Transparency Laws: A Multistate Perspective
Celena Mayo (Partner-New York, NY) and Olivia Orlando-Donovan (Of Counsel-White
Plains, New York) will present a Wilson Elser Forum webinar on April 4, 2024.
“Understanding and Navigating Salary Transparency Laws: A Multistate
Perspective” delves into the complexities of salary transparency laws across
various states, offering insights on compliance challenges, best practices and
real-world applications through case studies and interactive discussions. Celena
and Olivia will provide attendees with valuable knowledge on the evolving legal
landscape of salary transparency while exploring practical strategies to help
ensure compliance and mitigate risks. Don't miss this opportunity to enhance
your knowledge of employment law and stay ahead of the curve.
Read more
Client Wins
O’Brien and Dutton Show Indiana Law Does Not Permit Third-Party Bad Faith
Actions Against Insurance Carriers
Edward M. O’Brien (Partner-Louisville, KY/Indianapolis, IN) and Cyrus G. Dutton
IV (Associate-Louisville, KY) represented an insurer in a case in which
plaintiff was involved in a motor vehicle accident and asserted a claim against
an automobile liability insurer, our client, for "unfair claims violations and
bad faith” – a third-party bad faith claim. Specifically, the plaintiff alleged
that our client "failed and refused to comply with Indiana's Unfair Claims
Settlement Practices Act". Edward and Cyrus moved to dismiss for failure to
state a claim for which relief can be granted as Indiana law does not recognize
or permit third-party bad faith actions against insurance carriers. Cyrus argued
the motion before Clark County Superior Court, and the motion was granted.
Read more
Publications
Oregon Supreme Court Reduces $10 Million Punitive Damages Shock Verdict
Trebelhorn v. Prime Wimbledon SPE, LLC, 372 Or. 27 (2024), is a premises
liability case where a tenant at an apartment complex alleged he was injured
when a concrete walkway gave way beneath him, causing a meniscal tear that
required surgery. He sued the landlord, seeking $45,000 in economic damages and
$350,000 in noneconomic damages. The landlord admitted negligence but disputed
damages. The tenant conducted extensive discovery and sought to portray the
landlord as a slumlord who chose not to fix known problems at the complex. The
plaintiff sought punitive damages at trial and the trial court allowed the
request to go to the jury. The jury awarded the full economic damages, $250,000
in noneconomic damages and $10,000,000 in punitive damages. After hearing
post-trial motions, the trial court concluded the maximum constitutionally
permissible ratio of compensatory damages to punitive damages was nine times the
actual damages the jury awarded. The $10,000,000 punitive damages award was
reduced to $2,660,373.54. Both sides appealed. Oregon’s Supreme Court affirmed
the trial court’s ruling. It extensively examined the factual record as applied
to its case law concerning the difficult task of assessing when a punitive
damages award is constitutionally problematic. Ultimately, it concluded the
tenant had not met his burden to allow the original $10,000,000 award and its
33:1 ratio to stand. The 33:1 ratio “is dramatically greater than the
single-digit ratio that the [United States] Supreme Court has suggested is –
except in extraordinary circumstances – the limit of what due process will
permit, no matter what the tort.” The court reiterated that determining the
proper ratio is not a simple mathematical exercise and other ratios might be
proper in other cases. “Although we do not rule out the possibility that some
amount greater than (or less than) a 9:1 ratio might be the maximum
constitutionally permitted award in a case like this,” it was a constitutionally
permissible ratio here.  
Read more
News
Billek Reappointed to the New Jersey Joint Legislative Committee on Ethical
Standards
Max Billek (Partner-Madison, NJ) has been re-appointed to the state’s Joint
Legislative Committee on Ethical Standards for the 2024-2025 legislative
session, having served during the 2020-2024 legislative sessions. Currently a
bipartisan committee composed of eight public members, the Joint Committee is
responsible for administering the Conflicts of Interest Law and the Code of
Ethics for members of the Legislature and officers and employees in the
legislative branch of government. The Joint Committee investigates, either on
its own initiative or in response to a complaint, possible violations of the
Law, Code or Joint Rule 19 and is empowered to impose a fine up to $10,000 or
suspend from office an officer or employee of the Legislature for violations,
and it may fine a legislator up to $10,000 and recommend disciplinary action to
the legislator's House.
Read more
Events
Artificial Intelligence and Privacy Practices: A Global Implication
Jonathan Meer (Partner-New York, NY) will join a webinar panel on April 10,
2024, with Vered Zlaikha, Head of Cyber Affairs and AI Practice at Lipa Meir,
and Shay Simkin, Global Head of Howden Cyber, on “Artificial Intelligence and
Privacy Practices: Global Implications.” Since the flow of information has gone
global, privacy laws in various jurisdictions have become an issue for most
organizations, and the rise of artificial intelligence coupled with cyber risks
creates more risk than ever. This webinar will address some of those issues in
the United States and Israel, and where the changing landscape might take us in
2024.
Read more
Publications
Nevada Reaffirms Inquiry Notice Standards for Medical Malpractice Statutes of
Limitations
Igtiben v. Eighth Jud. Dist. Ct., 140 Nev. Adv. Op. 9 (App. Feb. 22, 2024),
concerned a prisoner who was transported to a hospital for medical treatment and
died in the hospital after treatment began. At the time, the applicable statute
of limitations contained in NRS 41A.097(2) was “1 year after the plaintiff
discovers or through the use of reasonable diligence should have discovered the
injury….” This also is known as inquiry notice. Applied here, the prisoner’s
mother obtained his complete hospital medical chart six weeks after the death.
Approximately fourteen months after the death, a forensic pathologist the family
hired concluded professional negligence contributed to the death. The family
filed their lawsuit eight months after receiving the forensic pathologist’s
report. The hospital and physician moved to dismiss, arguing the family’s
one-year statute of limitations had expired. The district court denied the
motion, concluding a genuine issue of material fact was present because the
family filed suit within eight months of the pathologist’s report. Nevada’s
Court of Appeals reversed and directed the district court to dismiss the
complaint. In Nevada, inquiry notice for potential medical malpractice begins
when the plaintiff or the plaintiff’s representative receives “all relevant
medical records.” Applied here, the only relevant medical records were the
hospital records. Thus, the family had the information necessary to investigate
the care and treatment and trigger inquiry notice just six weeks after the
death. The date that the forensic pathologist provided his report was
irrelevant. Igtiben might provide greater certainty to providers and patients as
they evaluate potential professional negligence claims. However, it underscores
the importance of careful responses to requests for medical records because if
other “relevant” records existed but were not provided, inquiry notice might not
be triggered.  
Read more
Events
Recreational Boating Committee: Recent Legal Developments
Otis Felder (Partner-Los Angeles, CA) has been invited to join the Recreational
Boating Committee panel at the 125th Anniversary Celebration Kickoff of the
Maritime Law Association of the United States, to be held May 1–3, 2024, in New
York City. Other speakers are from the U.S. Coast Guard and the American Boat
and Yacht Council. Otis will address developments in marine recreation law
following his involvement in two Ninth Circuit cases. Topics include the
enforceability of liability waivers under Ehart v. Lahaina Divers Inc.;
limitation proceedings following Williams Sports Rentals Inc. v. Willis (In re
Complaint & Petition of Williams Sports Rentals, Inc.); and indemnity and duty
to defend. Otis has been a Proctor Member in the MLAUS since 2020 and has spoken
at many of its past events on various topics, including marine insurance and
maritime security issues.
Read more
Publications
New Jersey Joins Growing Number of States to Enact a Comprehensive Data Privacy
Law
On January 16, 2024, New Jersey Governor Phil Murphy signed into law the New
Jersey Data Protection Act, making New Jersey the thirteenth state to enact a
comprehensive state privacy law. This law imposes a wide range of obligations on
businesses and nonprofits that collect and use personal data of New Jersey
residents, including notification requirements to consumers of collection and
disclosure of their personal data. Following the example of California and
Colorado, where the data privacy laws call for promulgation of implementing
regulations, the Director of the Division of Consumer Affairs in the Department
of Law and Public Safety is empowered to enact rules and regulations necessary
to effectuate the Act’s purposes. The Act becomes effective on January 16, 2025.
Applicability  The Act will apply to entities that conduct business in New
Jersey or produce products or services targeted to New Jersey residents.
Specifically, the Act applies to controllers that annually process the personal
data of 100,000 or more consumers, excluding data that is processed solely for
the purpose of completing a payment transaction. Alternatively, the Act will
apply to the organizations that meet the “sales threshold,” that is, if the
organization controls or processes the personal data of at least 25,000
consumers and derives revenue or receives a discount on the price of any goods
or services from the sale of personal data.  While the threshold requirements
for applicability are fairly standard, organizations must remain vigilant
concerning their information practices involving cookies, pixels and similar
tracking technologies. Collecting cookies potentially (and sometimes,
inadvertently) makes an entity subject to the Act under the sales threshold.
Specifically, the term “sale” is defined broadly to mean “the sharing,
disclosing, or transferring of personal data for monetary or other valuable
consideration by the controller to a third party.” This definition is similar to
the one used by the California Consumer Privacy Act. As seen from the California
Attorney General’s enforcement efforts, where a business discloses or makes
available consumers’ personal data to third parties through the use of online
tracking technologies such as pixels, web beacons, software developer kits,
third-party libraries and cookies, in exchange for monetary or other valuable
consideration, including for analytics purposes or for free or discounted
services, such practices meet the definition of a “sale.” See The People of the
State of California v. Sephora USA, Inc., Final Judgment and Permanent
Injunction.  Pursuant to the Act, “controller” means an individual or legal
entity that, alone or jointly with others, determines the purpose for and
methods of processing personal data. This means that the law will apply to
nonprofits, distinguishing the Act from most other comprehensive consumer
privacy laws but following the example of Colorado, Delaware and Oregon. In
terms of covered data, the Act regulates practices relating to personal data,
that is, any information linked or reasonably linkable to an identified or
identifiable person. De-identified data or publicly available information is not
within the scope of the Act.  Controller Obligations  The Act imposes several
obligations on controllers. As an initial matter, it requires that controllers
limit the collection of personal data to what is adequate, relevant and
reasonably necessary in relation to the purposes for which such data is
processed. Furthermore, the controller’s information practices and purposes for
processing must be disclosed to the consumers in a privacy notice, as discussed
below. It also is incumbent upon the controller to establish, implement and
maintain administrative, technical and physical data security practices. The Act
specifies that this obligation extends to securing personal data from
unauthorized access during both storage and use. It also requires the controller
to assess and ensure that the security practices are appropriate in relation to
the volume and type of data the entity is processing. The appropriateness of the
security practices is likely to be addressed in the forthcoming implementing
regulations.  As a baseline rule, processing of sensitive data is not permitted
unless the controller first obtains consent. Consent must be manifested as a
clear affirmative act signifying a consumer’s freely given, specific, informed
and unambiguous agreement to allow processing of personal data pertaining to the
consumer. Significantly, acceptance of general or broad terms of use will not
satisfy the consent requirement, nor will any agreement obtained through the use
of “dark patterns.”* In other words, in contrast to, for example the California
Consumer Privacy Act, the Act requires opt-in treatment for processing of
sensitive data. The definition of sensitive data is similar to those of the
other state laws but also includes a broader category of financial information
as well as gender identity status as transgender or nonbinary. Personal data
collected from a known child is included in the definition of sensitive data,
and must be processed in accordance with the Children’s Online Privacy
Protection Act.  The controller also has a duty to provide consumers with a
privacy notice that is reasonably accessible, clear and meaningful. The notice
must include, but may not be limited to:  The categories of the personal data
that the controller processes The purpose for processing personal data  The
categories of all third parties to which the controller may disclose a
consumer’s personal data The categories of personal data that the controller
shares with third parties How individuals may exercise their consumer rights The
process by which the controller notifies consumers of material changes to the
privacy notice, along with the effective date of the notice  An active
electronic mail address or other online mechanism that the consumer may use to
contact the controller. Like several other state privacy laws, the Act mandates
that controllers enter into written agreements with third parties that process
data on behalf of the controller. These agreements should govern the processing
procedures, and the Act provides a list of specific requirements to be addressed
in such data processing agreements. The Act also imposes a duty on controllers
to conduct a data protection assessment prior to processing of personal data
that would present a heightened risk of harm to individuals. These requirements
are similar to the draft rules presented by the California Privacy Protection
Agency in December 2023. Essentially, the risk assessment (California term for
data protection assessment) will require businesses to create a robust inventory
of their processing activities and subsequently weigh any benefits of such
processing against potential risks to individuals’ privacy. The Act lists
targeted advertising, profiling, selling personal data and processing sensitive
data as examples of what constitutes heightened risk.  Consumer Rights  The Act
grants consumers rights similar to those of the other state privacy laws.
Individuals have the right to (1) confirm processing of the consumer’s personal
data, (2) correct inaccuracies, (3) make deletions, (4) determine data
portability, and (5) opt out of processing for the purposes of sale of their
personal information, targeted advertising and profiling. In addition, the Act
creates certain opt-in requirements for minors. A controller may not process
personal data for targeted advertising, sale or profiling without express
consent from the consumer, where the controller knows, or willfully disregards,
that the consumer is at least 13 years old but younger than 17 years old. The
Act has additional requirements regarding opt-out methods. Entities that fall
within the Act’s application and engage in targeted advertising or sale of
personal data must comply with opt-out requests delivered passively through
Universal Opt-Out Mechanisms (UOOMs). UOOMs allow users to universally express
to all sites their preference to not be traced on the internet. The duty to
comply with UOOM requests will start six months after the Act’s effective date.
Notably, controllers must not make use of a default setting that opts a consumer
into the processing or sale of personal data, unless the controller has
determined that the consumer has selected such default setting and the selection
clearly represents the consumer’s affirmative, freely given and unambiguous
choice to opt in. This provision is interesting, given that the opt-in is not
required for processing non-online personal data for the purposes of sale, but
appears to be required for online data.  Enforcement  The New Jersey Division of
Consumer Affairs in the Department of Law and Public Safety will have the
authority to enforce the Act. There is a 30-day cure period that will expire 18
months after the effective date. The Act declares that a violation of its
provisions shall be “an unlawful practice and a violation of P.L. 1960, C. 39
(C.56:8-1 et seq.)” (the New Jersey Consumer Fraud Act). Initial violations are
punishable with fines up to $10,000, and subsequent violations up to $20,000.
Notably, no private right of action is specifically available under the Act. 
Conclusion  Organizations with a national footprint already familiar with
similar data privacy laws will need to update their compliance to meet New
Jersey–specific requirements. For some organizations with New Jersey–centric
operations, this new law may be the first time they need to consider building a
comprehensive consumer privacy program. Entities that may become subject to the
New Jersey Data Protection Act will have to carefully review their information
practices, draft privacy policies and develop comprehensive internal compliance
programs. A controller that is subject to the Act also should be mindful of, and
prepare for, any implementing regulations to be issued by the Director of the
Division of Consumer Affairs in the Department of Law and Public Safety.
Elisabeth Axberger, a recent law graduate, is a co-author of this article. * The
California Privacy Rights Act regulations offer extensive guidance and examples
of dark patterns. For example, the use of confusing language or interactive
elements is a dark pattern, as would be the use of “Yes” or “No” choices next to
the statement “Do Not Sell or Share My Personal Information.” This is a
confusing choice due to the double negative.  
Read more
Client Wins
Allin, Del Gatto and Bracht Obtain Dismissal of Defamation Case Against
Liquidator in UK Bankruptcy
Phoenix, Arizona, partners Taylor Allin and Brian Del Gatto and associate Blake
Bracht obtained dismissal of a defamation case against our client, a liquidator
in a UK bankruptcy who was appointed to oversee liquidation of the plaintiffs’
assets. Plaintiffs alleged our client made numerous harassing, threatening phone
calls and sent text messages to them and their U.S. business partners, forcing
the failure of multimillion-dollar business deals. Taylor, Brian and Blake
argued the allegations were false and being used to leverage a better settlement
of the bankruptcy debts in the United Kingdom. They lost a Motion to Dismiss on
jurisdiction early, and after completing discovery and establishing no
communications from the United States to the UK could be proven by evidence, the
U.S. District Court, District of Arizona ordered an evidentiary hearing on the
jurisdiction issue. The plaintiffs made false statements to the court about why
they could not attend the evidentiary hearing and had it postponed multiple
times. The Wilson Elser team filed a motion for sanctions once evidence of
plaintiffs' false representations to the court were definitively established.
The court agreed, noting plaintiffs were purposely avoiding attending the
evidentiary hearing and unreasonably delaying a judicial decision. Wilson Elser
successfully argued that the case should be dismissed with prejudice as lesser
sanctions would be inappropriate. 
Read more
News
Hattar, Lacy, Ledwin, Vago, Flannery & Cortellessa Named to Hudson Valley’s Top
Lawyers 2024
Six White Plains, New York, attorneys were named to Hudson Valley Magazine’s
2024 Top Lawyers Guide. This year's awardees are partners Jacqueline Hattar
(Civil Law Litigation), Mark Ledwin (Banking and Financial), Joel Vago (Civil
Law Litigation), Patricia Lacy (Medical Malpractice Defense), John Flannery
(Professional Malpractice Non-Medical Defense), and Of Counsel William
Cortellessa (Consumer Debt Law). Hudson Valley’s annual list features attorneys
selected by the magazine following an online peer review process and
investigation conducted by a national research firm. The magazine’s final review
of the results determines the top lawyers in the region across a range of
practice areas. Multi-year awardee and partner Jackie Hattar notes, "This is a
great honor for the firm and attorneys who practice in the Hudson Valley, and
recognition of the excellence of our attorneys."  
Read more
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