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You need to enable JavaScript to run this app. Skip Nav Attorneys Services Industries Firm Careers 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 NATIONAL FOOTPRINT Licensed to practice ALABAMA Birmingham ARIZONA Phoenix CALIFORNIA Los AngelesOrange CountySan DiegoSan Francisco COLORADO Denver CONNECTICUT HartfordStamford FLORIDA MiamiOrlandoSarasotaWest Palm Beach GEORGIA Atlanta ILLINOIS ChicagoEdwardsville INDIANA IndianapolisMerrillville KENTUCKY Louisville LOUISIANA New Orleans MARYLAND Baltimore MASSACHUSETTS Boston MICHIGAN Detroit MISSISSIPPI Jackson MISSOURI St. Louis NEVADA Las Vegas NEW JERSEY Madison NEW YORK AlbanyGarden CityNew YorkWhite Plains NORTH CAROLINA CharlotteRaleigh OREGON Portland PENNSYLVANIA Philadelphia TENNESSEE Nashville TEXAS AustinDallasHoustonTyler VIRGINIA McLean WASHINGTON Seattle WASHINGTON, DC Washington WISCONSIN Milwaukee 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." 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