Lathrop and Gage presentation - February Pro Lunch

© 2014 Lathrop & Gage LLP

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Welcome!


22

Top 10 Legal Pitfalls

for Content Generators

David Barnard ● David Waters


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David Barnard

Lathrop & Gage LLP

David Waters

Lathrop & Gage LLP


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Social Media in Litigation

List of 689 Social Media evidence cases (2010-2011)

http://x1discovery.com

�MySpace (315 cases), Facebook (304), LinkedIn (39), Twitter (30), Foursquare (1).

�Criminal matters were most common case type, followed by employment-related litigation, insurance claims/personal injury, family law and general business litigation (trademark infringement/libel/ unfair competition).


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Slander, Defamation and Libel

Slander, defamation, and libel

• When employee posts negative statements about

another employee, vendor, competitor, etc.


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Hostile Work Environment

Hostile Work Environment

• When postings contain sexually inappropriate, otherwise

discriminatory communications


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#plazafire

Healthcare Privacy and HIPAA


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1010

H I P A A

Health Insurance Portability and

Accountability Act


1111

Who Must Comply with HIPAA?

� “Covered Entities” must comply with the Privacy and Security Rules in HIPAA

• Healthcare Providers (Hospitals, Physicians, Dentists, Nursing Homes,

Pharmacies)

• Health Plans (Health Insurance Companies, HMOs, Employer Group Plans)

• Health Care Clearinghouses (Claims processors, billing services)

• “Business Associates” (That perform services for Covered Entities that involve

the use or disclosure of Protected Health Information).

� So, who is NOT covered by HIPAA?

• Generally, an Employer (even if a Covered Entity, when acting as an employer)

• Your friends or colleagues at work.

• News Reporters. Concerned Citizens.

• Other privacy laws may be impacted, but not HIPAA. Limited Applicability.


1212

“Protected Health Information”� Individually Identifiable Information

• Information (including demographic information)

• Created or received by a Covered Entity (Healthcare Provider, Health Plan,

Health Care Clearinghouse, Business Associate)

• Relating to:

� Past, Present, Future Physical or Mental Health Condition of an individual;

� Provision of health care to an individual; or

� Payment for provision of health care

• Identifying the Individual or there is a reasonable basis to believe the

information could be used to identify the person.


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GINA

Genetic Information Nondiscrimination Act� Enforced by the Equal Employment Opportunity Commission.

� Protects EMPLOYEES and JOB CANDIDATES from discrimination

based on their GENETIC INFORMATION or that of their family

members.

� Illegal for an employer to DELIBERATELY ACQUIRE genetic

information about employees (e.g., ask about family medical history

on employment application).

� Social Media creates more opportunities for genetic information to be

shared, opening the door to claims of employment discrimination.

� INADVERTENTLY LEARNING of employee’s genetic information is

not illegal. Also, exception for COMMERCIALLY AND PUBLICLY

AVAILABLE information.


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Discrimination Claims

Discrimination Claims

• Comments about protected status can be proof of

discriminatory animus


1515

Insider Trading/Securities Fraud


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Trade Secrets

Trade secrets and intellectual property

disclosure/infringement

• Disclosure of certain of your trade secrets or IP can

destroy (or at least erode) the “confidential” or protected

status of the information

• Employee’s use of someone else’s IP may constitute

“infringement”

� Proven by e-trail


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Ownership

� Special risk for content providers that may use of multiple profiles or

platforms (the “business” and “personal”) for same or similar content.

� Can a company cash in on, and claim ownership of, an employee’s social

media account, and if so, what does that mean for workers who are

increasingly posting to Twitter, Facebook and Google Plus during work

hours?

� Figure out at the beginning of your relationship (whether on the employer

side, or the content provider side), who owns the contacts developed

through an employee’s use of social media.

� Decide who gets to continue the account after the relationship ends.

� No “bright line” test, but content providers should probably assume—absent

an agreement—that “followers” or contacts you make through your

professional networks/accounts belong to the business.


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Rogue Employees

Rogue employee/ex-

employee access

• Know who has access

• Coordinate with HR


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"If anything good has come of this, I hope it's that other

employees and employers out there can recognize the

importance of social media to companies and

individuals both. Good contracts and specific work

agreements are important, and the responsibility for

constructing them lies with both parties. Work it out

ahead of time so you can focus on doing good work

together -- that's the most important thing."


2020

Endorsements


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ENDORSEMENTS VS. “LIKES” OR RETWEETS.

• All are “one-click” solutions, so tempting to view them the same.

• But, Likes and Retweets apply more to CONTENT: a photo, a shared article,

an observation, an announcement. They may have little to do with the person.

• But LinkedIn Endorsements have EVERYTHING to do with the person, and

even more, a particular quality of that person or organization.

FEDERAL TRADE COMMISSION, 16 CFR PART 225

• “Use of Endorsements and Testimonials in Advertising.”

• If you have employees saying great things about your company on their blogs,

social media accounts, etc., anywhere the relationship is not open and obvious,

there may be a need to disclose they are employees or are getting paid to write

the reviews, endorsements, or recommendations.


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FTC/Endorsement Rules

FTC/Endorsement Rules

• Effective 12/1/09

• Intended to curb “deceptive advertising”

• “Material connections” between blogger and company MUST

be disclosed


2323

Social Media Policies…

• On May 30, 2012, the NLRB issued NEW Guidelines on Social Media

Policies.

• The Memo discusses six relatively common policies that it found unlawful,

including:

� “Don’t release confidential guest, team, or company information”

� “Offensive, demeaning, abusive or inappropriate remarks are as out of

place online as offline…”

� “Think carefully about “friending” co-workers”

� “Don’t pick fights. Communicate in a professional tone.”

• The Memo is simply guidance, and the courts will have to sort out the

interplay between protected speech and good business practices.


2424

Tell Us How You Really Feel

� Cisco job candidate offered job.

� Candidate tweets ─ “Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.”

� Cisco responds

� Job offer . . . rescinded.


2525

Letting Your Lawyers Make You Look Like Morons


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Morons, cont.


2727

Morons, cont.


2828

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David Barnard

Lathrop & Gage LLP

[email protected]

816.460.5869

David Waters

Lathrop & Gage LLP

[email protected]

913.451.5112

Education

Lathrop and Gage presentation - February Pro Lunch