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Rhodes, Hieronymus, Jones, Tucker & Gable, PLLC's Nathan Clark Inducted as a Fellow of the American College of Trial Lawyers

(October 4, 2021) - Rhodes, Hieronymus, Jones, Tucker & Gable, PLLC is proud to announce that Nathan Clark has now been inducted as a Fellow of the American College of Trial Lawyers, one of the premier legal associations in North America.

Nathan’s induction ceremony took place during the recent Annual Meeting of the College in Chicago, Illinois. 

Founded in 1950, the College is composed of the best of the trial bar from the United States, Canada and Puerto Rico. Fellowship in the College is extended by invitation only and only after careful investigation, to those experienced trial lawyers of diverse backgrounds, who have mastered the art of advocacy and whose professional careers have been marked by the highest standards of ethical conduct, professionalism, civility and collegiality. Lawyers must have a minimum of fifteen years trial experience before they can be considered for Fellowship. Membership in the College cannot exceed one percent of the total lawyer population of any state or province. There are currently approximately 5,800 members in the United States, Canada and Puerto Rico. The College maintains and seeks to improve the standards of trial practice, professionalism, ethics, and the administration of justice through education and public statements on independence of the judiciary, trial by jury, respect for the rule of law, access to justice, and fair and just representation of all parties to legal proceedings. The College is thus able to speak with a balanced voice on important issues affecting the legal profession and the administration of justice.

Nathan is a partner in the firm and has been practicing out of Tulsa, Oklahoma for nearly twenty five years. Nathan is an alumnus of Baylor Law School and regularly practices law in both Oklahoma and Kansas. - (Rhodes, Hieronymus, Jones, Tucker & Gable, PLLC)

 

Security in Bars and the Foreseeability of Assaults 
Donald Decker CPP: Exigent Forensic Consulting
Police Practices and Premises Security Expert

Security in bars and the foreseeability of assaults. As the hospitality industry emerges from the COVID-19 shutdown, it once again will be faced with the issue of dealing with the foreseeability of crime, most notably assaults, inside and outside alcohol-service establishments. These establishments include bars, taverns, restaurants, nightclubs and other venues. The neighborhood bar provides a place for friends to meet and socialize. Taverns and restaurants provide customers a place to eat. Nightclubs provide a location for entertainment and for those that want to dance. The common issue at all these venues is the responsible service of alcoholic beverages. For the purpose of brevity in this article, the previously mentioned alcohol-service establishments will be referred to as bars.

Bars can be found inside casinos, hotels, and motels. Catering halls, entertainment and event venues, and fraternal and social clubs can contain or otherwise operate like a bar. The locations where assaultive behavior can occur not only includes inside the establishment, but outside the establishment including any parking facility dedicated specifically to those that patronize the establishment.

Bars have a responsibility to make their premises reasonably safe and secure for patrons and employees no matter how much alcohol patrons may drink. Assaultive behavior can occur between patrons, or bar staff (i.e., managers, waiters, waitresses, bartenders, barbacks or security personnel) can be assaulted by patrons. In some instances, patrons can be assaulted by bar personnel (e.g., overzealous security guard). The responsibility for reasonable safety and security of a patron and employee extends to all parts of the premises which the patron or employee may be reasonably expected to go and to those parts of the premises that the bar has reasonably led them to believe they can go.

A proper way to determine if the security on a bar premises is adequate is to analyze the risks associated with the hazards, also known as a threat assessment, in conjunction with the vulnerabilities, if any, of the bar premises. The former is effectively achieved by a proper analysis of the history and extent of criminal activity on and/or near the bar premises. The latter, also known as a vulnerability assessment, is effectively achieved by a proper analysis of the security measures present on the bar premises.

By conducting proper threat and vulnerability assessments, crime foreseeability can be addressed. Crime foreseeability is the reasonable expectation of a criminal incident occurring. If a criminal incident is not foreseeable, it does not mean that the criminal incident will not occur. It means that the criminal incident was not reasonably foreseeable at that time, at that location, and under those conditions. Absolute security is not reasonable and not required, but providing reasonable security is.

In recognition of the responsibility to make a bar premises reasonably secure, security measures are implemented to comply with the standard of care for providing for the reasonable security of a bar premises. Sometimes just the presence of a bar employee is all that is required to provide reasonable security. Sometimes the absence of a security measure, identified as a result of conducting a proper analysis for crime foreseeability, results in inadequate security that created the vulnerability for a criminal incident to occur. The security measures that are implemented to provide reasonable security at a bar are:

  • Active security measures are security measures that are the result of direct human involvement, often exemplified by the presence of an identifiable security guard and active monitoring of surveillance cameras, also known as CCTV.
  • Passive security measures are security measures that include the concepts of Crime Prevention Through Environmental Design, also known as CPTED. An example is the access control measures implemented by a doorman at the entrance of a bar. The doorman may have post orders that reflect policies and procedures, which are further discussed in the remainder of this article below, where underaged or previously banned patrons are prohibited from entering the bar.
  • Procedural security measures are the actions of bar personnel properly addressing the security of people, information and property while performing their duties.

Procedural security measures often reflect the policies and procedures of the bar. Bar personnel should be adequately trained in the bar’s policies and procedures. It should be remembered that a bar may not have policies and procedures that address a specific incident, but a bar employee still implements a proper response.

Procedural security measures are often implemented by those not specifically dedicated to be a security guard, often referred to as a bouncer. An example of such a procedural security measure is a bartender observing an improperly behaved patron at the bar and promptly remediating the patron’s behavior through verbal intervention or contacting management to address the behavior. If the patron’s behavior conspicuously persists; the patron is asked to leave the bar or the police are contacted, if the patron refuses to voluntarily leave, to have the patron removed. Notably, if a patron's actions are an imminent physical threat to others, prompt actions to properly remove such a patron should be implemented.

Security personnel should be properly hired and trained. Often the required licensing and training of a security guard is identified by local and/or state government. Security personnel, along with other bar personnel not including hired law enforcement personnel, have the same rights as a private citizen and must conduct themselves as such. Any physical actions involving others must be reasonable, including the proper ejection of fighting patrons.

Bars make up a significant part of the hospitality industry and have a responsibility to provide reasonable safety and security for its patrons and employees. Reasonable security should be present, so those that work at and patronize bars are reasonably secure on the premises. (Exigent)

 

Rule 68: Can Fee Shifting Work in Employment Cases?

There is no denying that the potential of recovery by plaintiffs of costs and fees in cases brought under federal and state discrimination and wage laws drives settlement of litigated claims.  Unless an employer defendant gets a defense verdict, a trial award to a Plaintiff of even a nominal amount will result in recovery of fees and costs by the plaintiff that are likely in excess of $100,000. Juries have no knowledge that a “compromise” verdict of a few thousand dollars for a plaintiff will ultimately result in a judgment for the damage amount, plus a considerable award of attorney fees.

The risks associated with trial in employment law is primarily borne by employers, since there is no recovery of expended fees in the event there is a defense verdict.  Plaintiff’s counsel will likely be out fees and costs of litigation in the event of a defense verdict, but the plaintiff him/herself has very limited exposure. The realities of this disproportionate risk results in plaintiffs bringing claims that oftentimes have little or no evidentiary support, without any real risk for pursuing frivolous claims. He/she is no worse off after litigation, even if there is a defense verdict.  However, an employer has already expended considerable defense costs and fees to be proven correct. 

Even in a case where there is potentially some issue with liability for the employer, but where the plaintiff has a very limited damage number, it can sometimes be difficult to settle cases. Plaintiff’s attorneys sometimes agree to “split” the finally-awarded amount (judgment plus fees), resulting in little incentive for a plaintiff to accept a settlement offer that covers their limited damages – in the hopes that there is a bigger payout by taking the case to trial and sharing in the award of fees. 

There are not many tools that an employer has to try to level the playing field.  One option for consideration is an early offer of judgment utilizing Rule 68 of the Federal Rules of Civil Procedure.  This tool will not be right for every case, but is something worth considering. 

While Rule 68 offers may result in recovery of fees and costs pursuant to offers of judgment under Title VII claims, the FLSA, ADA, and ADEA never permit a defendant/employer to recover attorney fees - only allowable costs. When a defendant’s Rule 68 offer of judgment is rejected and the plaintiff receives a lower judgment at trial, the plaintiff is only required to pay the defendant’s costs. While a prevailing party is generally entitled to the recovery of costs in federal court without invoking Rule 68, some circuits limit costs recoverable to prevailing defendants in employment actions.  Therefore, a Rule 68 offer of judgment may be employed as a useful tool to entitle a prevailing defendant to recover more litigation costs in these circuits. 

Depending on what statute a plaintiff/employee sues under, there are two different results for a plaintiff’s accrual of fees when a defendant makes a Rule 68 offer that is more than the plaintiff receives at trial: (1) if suing under Title VII, Rule 68 does not permit a plaintiff to recover attorney’s fees; (2) if suing under the FLSA, ADA, or ADEA, Rule 68 does permit the plaintiff to recover attorney’s fees. Therefore, an offer of judgment is likely a better strategy for an employer in a Title VII case rather than an FLSA, ADA, or ADEA case. Additionally, there are some circumstances where the plaintiff’s fees may be limited by the court.

If the plaintiff prevails at trial after rejecting an offer of judgment, the defendant is still required to pay fees and costs up until the date the Rule 68 offer was made, even where the rejected offer is more than the plaintiff’s judgment. Rule 68 only requires a plaintiff to pay for the defendant’s costs accrued after the offer is made. The Rule is meant to encourage plaintiffs to settle, but for many plaintiffs the penalty of paying the defendant’s costs may not be overly burdensome. For that reason, if an employer is serious about making an offer of judgment, it is important to consider making it at the earliest stages of the case to limit the amount of pre-offer fees and costs for both parties.

Because the purpose of Rule 68 is to encourage settlement, the court’s process in awarding attorney fees takes into account the amount of the offer, when the offer was made, and whether it was reasonable to continue the litigation process after receiving the offer. Courts consider these factors in both Title VII and FLSA/ADA/ADEA cases.

Employers may be hesitant to make offers of judgment due to the stigma associated with such an offer.  If the offer is accepted, the amount will be of public record. Employers may feel this will encourage others to make claims, which is clearly a valid concern. Fortunately, in federal court, unaccepted offers are not filed of record, but can still be used if a plaintiff is less successful at trial than the offer that was made. This benefit makes it worthwhile to at least consider the option.

Rule 68 Offers of Judgment Generally

“The purpose of Rule 68 is to encourage the settlement of litigation.” Delta Air Lines, Inc. v. August, 450 U.S. 346, 352, 101 S. Ct. 1146, 67 L. Ed. 2d 287, (1981). “Rule 68 provides an additional inducement to settle in those cases in which there is a strong probability that the plaintiff will obtain a judgment but the amount of recovery is uncertain.” Id.

“Because prevailing plaintiffs presumptively will obtain costs under Rule 54(d), Rule 68 imposes a special burden on the plaintiff to whom a formal settlement offer is made.” Id. If a plaintiff rejects a Rule 68 settlement offer and the final judgment award is less than the offer, the plaintiff will be required to pay the costs incurred to the defendant after the offer. Id.

A Rule 68 offer of judgment can be made only after a suit has been filed, but it must be made at least fourteen days before the date set for trial. Fed. R. Civ. P. 68(a); Lesley S. Bonney et. al., Rule 68: Awakening A Sleeping Giant, 65 Geo. Wash. L. Rev. 379, 383 (1997); see Clark v. Sims, 28 F.3d 420, 424 (holding that “a Rule 68 offer of judgment must be made after the legal action has been commenced. Offers of compromise made before suit is filed do not fall within the rule”). The opposing party will then have fourteen days after being served to send written notice accepting the offer. Fed. R. Civ. P. 68(a).

An unaccepted offer does not preclude a later offer of judgment. Evidence of an unaccepted offer is not admissible except in a proceeding to determine costs. Fed. R. Civ. P. 68(b). Rule 68 has no application to settlement offers made by the plaintiff. Delta Air Lines, 450 U.S. at 350.

Rule 68 offers of judgment should specifically mention whether attorney’s fees and costs are included in the amount offered. § 69:84. Offers of judgment, 2 Emp. Discrim. Coord. Analysis of Federal Law § 69:84. If a defendant is considering making an offer, it is best to do so early so as not to accrue as much in costs on either side. Although Rule 68 does not require any particular language in an offer, it does provide that the offer must also include the plaintiff’s costs incurred up to the date of the offer. Ian H. Fisher, Federal Rule 68, A Defendant's Subtle Weapon: Its Use and Pitfalls, 14 DePaul Bus. L.J. 89, 96 (2001).

A defendant may potentially block the plaintiff from obtaining his or her post-offer attorney’s fees through a successful Rule 68 offer. A. Jonathan Trafimow, Making Rule 68 Offers of Judgment in Employment Cases, Law360, New York (June 29, 2016) *Making-Rule-68-Offers-Of-Judgment-In-Employment-Cases.pdf (moritthock.com). If the defendant wins on merits, then Rule 68 does not apply and the defendant is not entitled to payment from the plaintiffs for its post-offer costs. Delta Air Lines v. August, 450 U.S. 346, 351–52 (1981) (more on this case below).

Whether the Governing Statute Includes Attorney’s Fees in Its Definition of “Costs”

A major issue with Rule 68 Offers of Judgment is that the drafters failed to define “costs.” Before making an offer, a defendant needs to consider whether a court will award the plaintiff its attorneys’ fees. Ian H. Fisher, Federal Rule 68, A Defendant's Subtle Weapon: Its Use and Pitfalls, 14 DePaul Bus. L.J. 89, 96 (2001). This can be particularly problematic in cases involving fee-shifting statutes.

In Marek v. Chesny, the Supreme Court determined the effect of Rule 68 on statutes involving fee-shifting of attorney fees. 473 U.S. 1, 8, 105 S. Ct. 3012, 87 L. Ed. 2d 1 (1985). The Court reasoned that “the most reasonable inference is that the term ‘costs’ in Rule 68 was intended to refer to all costs properly awardable under the relevant substantive statute or other authority.” Id. Further, the Court held that “all costs properly awardable in an action are to be considered within the scope of Rule 68 ‘costs.’” Id. Ultimately, the Court held that “absent congressional expressions to the contrary, where the underlying statute defines ‘costs’ to include attorney’s fees, we are satisfied such fees are to be included as costs for purposes of Rule 68.” Id. at 8–9.

Title VII’s Definition of Costs Implicitly Includes Attorney’s Fees

“Fee-shifting statutes in the employment discrimination context only provide for the prevailing plaintiff to obtain attorney’s fees.” A. Jonathan Trafimow, Making Rule 68 Offers of Judgment in Employment Cases, Law360, New York (June 29, 2016) at 2, *Making-Rule-68-Offers-Of-Judgment-In-Employment-Cases.pdf (moritthock.com). Title VII defines “costs” to include attorney’s fees by stating that “the court, in its discretion, may allow the prevailing party … a reasonable attorney’s fee (including expert fees) as part of the costs.” 42 U.S.C. § 2000e-5(k) (emphasis added). Costs are interpreted to implicitly include attorney’s fees in a Title VII case.

Because Title VII’s definition of “costs” includes attorney fees, a plaintiff cannot recover attorney fees after a rejected Rule 68 offer of judgment, even when the plaintiff prevails at trial, but a plaintiff can still recover generated attorney fees up until the point of the offer. “[W]hen a plaintiff rejects a defendant’s Rule 68 offer, and then obtains less than that offer at trial, Rule 68 will not permit a prevailing defendant to obtain payment from the plaintiff for defendant’s attorney fees.”  see, e.g., Tai Van Le v. University of Pennsylvania, 321 F.3d 403, 411 (3rd Cir. 2003) (holding that defendant is not entitled to attorney’s fees in in Title VII case when plaintiff received a less favorable judgment than defendant’s Rule 68 offer). Meaning, a defendant is only entitled to costs after a plaintiff rejects a Rule 68 offer and receives less at trial.

Title VII offers of judgment may include a specified amount of attorney’s fees or merely provide for a reasonable amount of fees to be determined by the court. § 69:84. Offers of judgment, 2 Emp. Discrim. Coord. Analysis of Federal Law § 69:84. “The troublesome questions concerning attorney’s fees in the context of offers of judgment may be avoided by defendants who are sincerely interested in settling the Title VII claim, without litigating, by routinely inserting a ‘reasonable attorney’s fees to be determined by the court’ provision in all offers of judgment, and by plaintiffs with similar interests accepting all reasonable offers of judgment in lieu of trial.” Id.

It is important to consider making an offer of judgment at the earliest opportunity to potentially limit each party’s costs and attorney’s fees. If the defendant’s offer is rejected and the plaintiff’s judgment is less than the offer, the defendant is only required to pay costs and attorney’s fees generated before the offer was made.

Although attorney fees are implicitly included as costs under Title VII, a defendant should specify that its offer includes costs and attorney fees.

            Two cases for consideration:

In Sanchez v. Prudential Pizza, Inc., 709 F.3d 689 (10th Cir. 1999),an employer’s offer of judgment, which specified that it applied to “all of Plaintiff’s claims for relief” in her Title VII suit, did not include the employee’s claim for attorney fees and costs. Id. at 690. Thus, the employee’s award of attorney fees and costs was warranted, even though the employee sought attorney fees in her complaint. Id. at 694. The Seventh Circuit noted that “Rule 68(a) requires the offer to include “specified terms.” Id. at 692. The court reasoned that “an ambiguous offer puts the plaintiff in a very difficult situation and would allow the offering defendant to exploit the ambiguity in a way that has the flavor of ‘heads I win, tails you lose.’” Id. at 693–94. For instance:

[i]f the plaintiff accepts the ambiguous offer, the defendant can argue that costs and fees were included. If the plaintiff rejects the offer and later wins a modest judgment, the defendant can then argue that costs and fees were not included, so that the rejected offer was more favorable than the ultimate judgment and that the plaintiff’s recovery of costs and fees should be limited according.

Id. at 694 (emphasis in original). The Tenth Circuit held that:

‘[i]f an offer recites that costs are included or specifies an amount for costs, and the plaintiff accepts the offer, the judgment will necessarily include costs; if the offer does not state costs are included and an amount for costs is not specified, the court will be obliged by the terms of the Rule to include in its judgment an additional amount which in its discretion it determines to be sufficient to cover the costs.’

Id. (quoting Marek, 473 U.S. at 6).  Holding: if terms of Rule 68 offer are ambiguous, it will be construed against the defendant-offeror.

In Delta Air Lines, Inc. v. August, 450 U.S. 346, 101 S. Ct. 1146, 67 L. Ed. 2d 287 (1981), the plaintiff, a flight attendant, filed a complaint against the defendant, Delta Air Lines, alleging that she had been discharged because of her race in violation of Title VII. Id. at 348. She sought reinstatement, about $20,000 in backpay, attorney’s fees, and costs. Id. The defendant made a formal offer of judgment to the plaintiff in the amount of $450. Id. The plaintiff did not accept the offer and at trial the plaintiff lost. Id. at 348–49. The district court entered judgment in favor of the defendant and directed that each party bear its own costs. Id. at 349.However, the defendant then moved for modification of judgment, contending that under Rule 68 the plaintiff is required to pay the costs incurred by the defendant after an offer of judgment has been refused. Id. The court denied the motion on the ground that the $450 offer was not a good-faith attempt to settle the case. Id. The appellate court affirmed, holding that Rule 68 only applies if the defendant’s settlement offer was sufficient “to justify serious consideration by the plaintiff.” Id.

The issue in this case was whether the words “judgment finally obtained by the offeree” as used in Rule 68 should be interpreted to include “a judgment against the offeree as well as a judgment in favor of the offeree. Id. at 347–48 (emphasis in original).

The Court reasoned that the plain language of Rule 68 states that the rule applies when the defendant offers to have “‘judgment … taken against him.’” Id. at 351. The Court noted that because “the Rule obviously contemplates that a ‘judgment taken’ against a defendant is one favorable to the plaintiff, it follows that a judgment ‘obtained’ by the plaintiff is also a favorable one.” Id. Thus, the Court found that the Rulemakes clear that “it applies only to offers made by the defendant and only to judgments obtained by the plaintiff,” so the Rule was inapplicable to the plaintiff’s case.

Ultimately, the Supreme Court held that “the Federal Rule of Civil Procedure 68—which provides that if a plaintiff rejects a defendant's formal settlement offer ‘to allow judgment to be taken against him,’ and if ‘the judgment finally obtained by the offeree is not more favorable than the offer,’ the plaintiff ‘must pay the costs incurred after the making of the offer’—does not apply to a case in which judgment is entered against the plaintiff-offeree and in favor of the defendant-offeror.” Id. at 346.  Holding: a defendant is not entitled to costs in Title VII case where plaintiff rejects a Rule 68 offer and subsequently loses at trial.

FLSA, ADA, and ADEA’s Definition of Costs Does Not Include Attorney Fees

The FLSA provides for a mandatory award of attorney’s fees and costs to an employee who prevails on his or her claim. 29 U.S.C. § 216(b). The statute does not define costs as including attorney’s fees: “The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.” 29 U.S.C. § 216(b) (emphasis added). The ADA and ADEA also do not include attorney’s fees as part of costs. 42 U.S.C. § 12205 (ADA); 29 U.S.C. § 626 (ADEA – incorporating fee-shifting provisions from FLSA).

If no Rule 68 offer is made, a prevailing plaintiff will recover both attorney’s fees and costs, whether the judgment is less than or higher than a previous settlement offer. On the other hand, if a Rule 68 offer is made by the defendant and the judgment for the plaintiff is less than the offer, the plaintiff will still recover fees to the date of the offer and the defendant will only recover costs incurred after the date of the offer.

Additionally, it appears that courts will take a Rule 68 offer into account when determining the amount of fees a plaintiff may recover. Dalal v. Alliant Techsystems, Inc., 182 F.3d 757, 761 (10th Cir. 1999). In Dalal, an ADEA case, the district court awarded fees generated before the Rule 68 offer, but only awarded half of the fees accrued after the offer. Id. The Rule 68 offer was $150,000 and the judgment at trial for the plaintiff was only $36,075. Id. The district court also lowered the plaintiff’s fee amount based on the “limited success” of his Title VII claim. Id. The Tenth Circuit held that the district court’s determination of fees was in its discretion, noting that “‘there is no precise rule or formula for making such determinations.’” Id. at 763 (quoting Berry v. Stevinson Chevrolet, 74 F.3d 980, 990 (10th Cir. 1996)).

In deciding an attorney fee award, Courts consider various factors.  In Haworth v. State of Nev., 56 F.3d 1048 (9th Cir. 1995), state employees sued the state under FLSA. The state’s offer of judgment was more than the final judgment for the employees. Id. at 1050. The district court awarded the employees costs and attorney fees. Id. The Ninth Circuit Court held that the state’s offer of judgment did not bar the award of the attorney fees under FLSA, even though the final judgment was less than the Rule 68 offer. Id. at 1052. The Court further held that in determining what amount of attorney’s fees are reasonable in an FLSA action with an offer of judgment, a court must consider the following: the amount of the offer, the stage of litigation at which the offer was made, what services were rendered thereafter, the amount obtained by the judgment, and whether it was reasonable to continue litigating the case after the offer was made. Id. at 1052–53. The Ninth Circuit vacated the district court’s award of costs to the plaintiff because they were not entitled to any costs incurred after they rejected the Rule 68 offer. Id.

Conclusion

While an offer of judgment will not make sense in every employment case, it is worthwhile to consider, especially in Title VII cases.  However, its effectiveness diminishes as a case progresses, so it is important to consider an offer of judgment very early in the litigation. 

Articles:

Lesley S. Bonney et. al., Rule 68: Awakening A Sleeping Giant, 65 Geo. Wash. L. Rev. 379, 383 (1997).

Ian H. Fisher, Federal Rule 68, A Defendant's Subtle Weapon: Its Use and Pitfalls, 14 DePaul Bus. L.J. 89, 96 (2001).

Kevin C. Johnson, Rule 68 and the High Cost of Litigation: The Best Defense Weapon of Which You've Never Heard and Its Missed Opportunity to Promote Settlement, 10 Charleston L. Rev. 475 (2016).

A. Jonathan Trafimow, Making Rule 68 Offers of Judgment in Employment Cases, Law360, New York (June 29, 2016) at 2, *Making-Rule-68-Offers-Of-Judgment-In-Employment-Cases.pdf (moritthock.com).

§ 69:84. Offers of judgment, 2 Emp. Discrim. Coord. Analysis of Federal Law § 69:84.

Malinda Matlock is a Partner with Rhodes Hieronymus in Oklahoma. She practices in the areas of Professional Liability (Medical, Legal, A&E, E&O, D&O), Employment Litigation, Sexual Misconduct, Premise Liability, Transportation, Bad Faith Insurance Claims, and Coverage Disputes.

Denelda L. Richardson is a partner in Rhodes Hieronymus whose practice focuses on litigation and appellate practice, with an emphasis on claims of employment discrimination under both federal and state law.

Malinda and Denelda would like to give special thanks to Meredith Tan, Law Student, for her enthusiastic assistance in researching how courts across the country have applied Rule 68 in the employment context. 

 

Buckle Up for New Roads Ahead: Product Liability and Autonomous Vehicles

Adam Fogarty, M.S., P.E.
SEA, Ltd., Rolling Meadows

As technology marches forward, many of the tasks that people were once burdened with are being addressed by sensors, circuit boards, and processors. The rate of information transfer from Point A to Point B is ever accelerating, allowing for incredible paradigm shifts to occur across several industries.

One such shift is the approach towards the goal of self-driving vehicles, which has garnered much attention recently due to many hardware and software advancements that have allowed this objective to become much more realizable. One such advancement is the implementation of Advanced Driver Assistance Systems (ADAS), which perform tasks such as adaptive cruise control, lane keep assist, forward collision warning and blind spot monitoring.

Since a variety of sensors and processors are used to control ADAS systems, manufacturers are able to apply similar hardware and object recognition techniques towards the target of self-driving. Although there are differences in the ways each manufacturer constructs and implements their ADAS systems, there are certain sensors and devices that are commonly used. For a vehicle to drive itself, it must first be able to detect the world around it. To do this, devices such as ultrasonic sensors, RADARs, LIDARs, and cameras, are being used in unique ways.

Ultrasonic sensors rely on high-frequency sound waves that are sent and received by each sensor. Because sound waves are the method of detection, the color of a detected object is irrelevant, and the absence of light is not a hindrance. Such sensors are short range and can be small and lightweight. Therefore, they are commonly built into the front and rear fenders of vehicles for close-range object detection. This can allow for park-assist features that warn drivers when they are too close to large objects, such as a nearby car or wall.

RADAR sensors use electro-magnetic (EMF) waves for object detection. Both short-range and long-range RADAR systems can be used with effective ranges beyond 500 feet, unlike the shorter ranges of ultrasonic sensors. However, forward-facing RADAR units are similar in that they can be implemented on the front fender of a vehicle. Their longer range of detection can allow for features such as adaptive cruise control, forward collision warning, and emergency braking.

LIDAR systems use a rotating, pulsed laser for object detection. Since a laser is used as the detection method, LIDAR has a long effective range, and can operate in the absence of daylight. LIDAR systems can measure the distance of objects with precision and accuracy and can produce a high-resolution image of the environment surrounding the unit. However, since the laser needs to rotate and sweep across the landscape, time is required for a complete image to form. Traditionally, it has been difficult to equip vehicles with LIDAR systems due to their size and cost. However, newer generations of LIDAR systems reduce the cost, size, and latency of information collection.

Cameras are devices seen on many consumer products across the globe. Due to their popularity, the acceleration of camera technology has been incredibly fast. They are smaller, cheaper, and higher resolution than ever before. Cameras can be implemented on several different parts of a vehicle, assuming they have an unobstructed view. With several cameras facing different directions, a full 360-degree vision envelope can allow a vehicle system to see in all directions at all times. Additionally, cameras can utilize different vision spectrums, such as infrared for more robust nighttime operation. However, one challenge lies in the fact that cameras do not measure distance from the objects observed.

By using combinations of ultrasonic sensors, RADARs, LIDARs, and cameras (among other components), vehicles can detect much of their surroundings in real time. With a variety of object detection methods, the strengths of one system can make up for the weaknesses of another. For instance, since some cameras rely on light to observe an object, nighttime driving or fog may become a challenge for that camera system. Despite this, if a different sensor (such as a RADAR) is facing the same direction at the same time, the RADAR may be more effective than the camera.

Each sensor collects data that must be processed and analyzed in order for a vehicle to recognize the environment. For instance, a camera records images in the form of a matrix of pixels, each of which carries a value that corresponds with a specific color. Therefore, rather than seeing objects directly, software systems are instead given long arrays of values. One technique used to decipher and analyze these arrays is known as a neural network.

Neural networks are a software strategy inspired by the workings of the human brain. Rather than being instructed directly, they are instead trained using immense amounts of data. For this training to take place, an “answer sheet” must be created. Since humans are naturally able to recognize objects, they are used to create each answer sheet. For instance, a person can be shown a group of images, then they can select which images contain pictures of objects, such as cars, bicycles, road signs, lane lines, etc.

Once an answer sheet is created, neural network training can take place. First, a neural network can begin as a blank page attempt to answer a question. The structure of the network is a series of nodes that are connected to each other, similar to the network of neurons in a human brain. Once the network is shown the answer to the question it is seeking to answer, the network pathways that relate to the correct answer are strengthened. If this process is repeated, the network will become more effective at answering the type of question it was trained to answer.

If a neural network is being trained to recognize objects for the purpose of driving a vehicle, it is important to remember that the real world is full of unique circumstances which may fall outside of the trained neural network. No two situations are the same, and random encounters are not uncommon. Therefore, when training a neural network for self-driving, answers must be provided that are as diverse as the real world. For example, if a network is shown nothing but straight, empty roadways, it will only see the world as a series of straight, empty roads. Instead, diverse, realistic data incorporating things like twists, turns, hills, angles, trucks, cars, bicycles, pedestrians, etc. should be included.

Once a network can recognize objects, it is critical to assign distance values to them. If a system has sensors, such as LIDAR and RADAR, these can be used to measure objects that are recognized. However, it is possible for a system of cameras to calculate, rather than measure distances to recognized objects.

One method for this is known as binocular vision. In sum, multiple camera perspectives of the same object can be compared to each other to calculate its distance. This is how humans determine the distances of objects that they see, as they have two eyes viewing objects from unique perspectives.

Another distance determination method relies on a single camera perspective, but requires that objects move in order for their distance to be approximated. The same strategy is used by some animals to perceive the distance of predators in nature.

Once a vehicle can recognize its surroundings, it must also recognize where it is currently located. A Global Positioning System (GPS) can directly measure the location of a vehicle. Additionally, this location can be traced over time to create known pathways of where vehicles may travel. Therefore, previous driver pathways can be used to predict where vehicles should be traveling.

Additionally, if a particular neighborhood or roadway has been well documented by the GPS tracking of other vehicles (or LIDAR equipped test vehicles), the area may be an acceptable area of travel for a self-driving car. Therefore, GPS can be used to restrict areas of autonomous driving to only certain areas. This technique is known as “Geofencing.”

No system is impervious to disturbance, and the hazards of driving are broad and diverse. One type of disturbance comes in the form of sensor blockage. Whether it be snow, mud, or even large insects, it is possible for RADARs, LIDARs, or cameras to get blocked momentarily. Therefore, it is critical for an autonomous vehicle to be well equipped with a diverse array of overlapping sensors, so one sensor can make up for another in times of need. More robust sensor suites with stronger overlap can eventually circumvent the challenge of sensor blockage.

In any vehicle accident, it is important to understand if a vehicle malfunction contributed to or caused the accident. Similarly, in accidents involving ADAS equipped vehicles, an evaluation of the many systems, sensors, and components will be important in understanding crash causation. Therefore, it is beneficial if a vehicle records electronic data from its sensors and specifies whether or not the ADAS technology was in control of the vehicle at the time of the crash.

Full self-driving technology will not be implemented immediately, so it is important to remember that such features are being added piece by piece as ADAS, such as adaptive cruise control, blind spot monitoring, forward collision warning, active lane keep (a technique used to keep vehicles from drifting out of their lane), and self-driving operation only when the driver is engaged and paying attention. Therefore, drivers can become more familiar with self-driving techniques as they evolve.

However, it cannot be assumed that pedestrians or other drivers are familiar with the specific features of a given vehicle. With this in mind, it is difficult to anticipate how pedestrians and other drivers will react to the actions of an autonomous vehicle. For instance, if an autonomous vehicle and a human-operated vehicle are attempting to park in the same spot, there may be miscommunications that occur as one vehicle tries to anticipate the decisions of the other.

Regardless, many companies are chasing this goal of self-driving, which will increasingly be influenced by artificial intelligence. With multiple sensor redundancy and ever-improving processing times, autonomous vehicles have immense potential, and have already demonstrated themselves to be fully capable of safe operations under certain conditions. As more vehicle automation takes place, more data can be fed into neural networks, creating ever-improving vehicle systems that may ultimately surpass the capabilities of human-operated vehicles. The legal, ethical, and technical challenges will be pervasive, but certainly there are many safety advantages to consider as autonomous vehicles become more prevalent in the future. - (SEA Ltd.)

 

Ransomware: Real Life Battle Bots
by: Marci De Vries, Fraudsniffr

My husband and I watch a lot of robot movies, and we always start laughing when two giant robots stand up and start punching each other with their giant metal fists. It’s funny because a real robot war would look like two server boxes getting really hot. Maybe toss in melted router for added dramatic effect.

In real life, ransomware is a $3 billion industry, perpetrated by infinite testing and vulnerability detection. Because American company firewalls and intrusion detection systems are typically handled by software that does not detect macro trends, a bad actor can test and locate vulnerabilities without ever alerting a human. The bad actor simply uses an array of VPNs to sidestep the rudimentary pattern analysis included in most server security protocol while they look for paths into the data.

After an intrusion point is located, the bad actor can inject code that does not deploy as a ransomware attack for months. This quiet code completes a variety of tasks – first it copies data and delivers that data to the bad actor, then it tags data for deletion during the future ransomware attack. The code also flows into any machine that sends data to the affected device, and out to any device where the machine sends data. In this way the ransomware affects not only the machine that had the vulnerability, but also to all the data on all the devices connected to that machine. It is an elegant way to bypass any firewall system to infect an entire network, even reaching out to the laptops and flash drives of remote workers. Most ransomware code also has AI included to identify the most critical data, based on usage, frequency, and type. The bad actor assesses the relative value of the data and compares it against a sophisticated financial analysis of the victim to calculate the ransom demand.

This quiet ransomware code does its work for six months or more, just long enough to outlast a standard backup/restore process – most companies keep full backups for six months, and then only periodic (and not very useful) backups from earlier dates. This long quiet period makes it impossible for a company to restore their systems from any existing useful backups. Furthermore, if a company tries to restore from a backup that includes ransomware code, often the ransomware attack will become even more aggressive and delete additional data from the affected device(s).

Companies in the middle of an active ransomware attack are often incredibly surprised at the customer service and professionalism exhibited by the bad actor who has made the ransom demand. If the company representatives are willing to pay the ransom, the process of retrieving data is very straightforward. At the end of a successful ransomware transaction, the data is fully restored and a company can resume operations as if the attack had not happened. However, for companies that want to fight the ransomware actors, the data can be returned damaged, or not returned at all. 

The maddening part of ransomware attacks is that they are nearly random. Ransomware attacks that haven’t made the national news include my son’s school district, a local hospital system, a cardiac surgery unit within a medical system, a mid-sized document imaging company, and a municipality’s technical infrastructure. It could be as random as this: ransomware bots start with a vulnerable device, and then walk through not only a company’s infrastructure, but also the company’s hosting provider. Once a ransomware bot infects a hosting provider, the bots might even spread to the other companies hosted in the same facility. In reality, at this point there does not seem to be a pattern to the selection of ransomware victims.

So how can a risk manager address the ransomware threat? According to Swadesh Guchhait, president of Alliance Infosystems, a Baltimore-based IT company that specializes in network security, the biggest mistake enterprises make is focusing on the leading edge of their network security – while a robust firewall is important, it will not provide systemwide protection.

Companies interested in slowing down or stopping a ransomware attack need to segment their network, which would prevent a bad actor from moving horizontally through a network once it is behind the firewall. Segmenting means putting the HVAC computer system on a separate network from the production network, and segmenting Wi-Fi from the main data network. Network design and hygiene is the most effective way to limit the extent of a ransomware attack.

Guchhait also indicates that end point security (computers used by humans on a network) is the primary intrusion point for ransomware. Training employees device usage is important, especially as bad actors produce increasingly salacious content to entice clicks.

There are some standard practices to engage in as well, it is important to install network protection that scans for active and dormant viruses, with the understanding that this is a best practice, not a foolproof protection plan.

It’s a dangerous new war we’re fighting. The attacks are civilian companies, and the people at the front line are you and me. Stay safe out there, and don’t click on anything you don’t recognize.

 
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