Category Archives: Small Business

The Red Flag Program Clarification Act of 2010 Passes House and Senate

Looking to beat the end of the year enforcement deadline, the Senate (on November 30, 2010) and the House (on December 7, 2010) have now both voted to pass a law that would limit the scope of the FTC’s Red Flags regulations.  Although the ABA lawsuit seeking to exempt lawyers from the scope of these regulations is on appeal, it appears as if that suit will soon be dismissed as moot.

First introduced by Sen. John Thune, The Red Flag Program Clarification Act of 2010, S. 3987, would define a creditor as someone who uses credit reports, furnishes information to credit reporting agencies or “advances funds…based on an obligation of the person to repay the funds or repayable from specific property pledges by or on behalf of the person.”  Sen. Thune’s web site statement regarding the regulations states that action was necessary given the FTC was threatening small businesses with its regulations. 

As written, the existing law applies to “creditors,” a term the FTC interpreted broadly to include professionals who regularly deferred payment on services.  The FTC had delayed enforcement of these regulations numerous times due to pressure by the ABA and AMA given that the sweeping nature of the regulations would take into account professionals who would incur significant costs to address a perceived slight exposure.   As recognized on the House floor by Rep. John Adler (D-N.J.),“When I think of the word ‘creditor,’ dentists, accounting firms and law firms do not come to mind.”

Lost on many is the fact these regulations will remain in force and will still impact business owners throughout the country, including financial institutions, car dealers, contractors, utilities, phone providers, retailers (if financing is provided), mortgage brokers, etc.  Moreover, even if a business may no longer be “technically” within the rubric of the regulations, it may be a good best practice to still comply.  For example, an ID theft victim may look to the FTC Red Flags regulations to help determine a baseline reasonableness standard.  Although estimates of compliance costs range from $1,000 to $1,500 for small business owners, this amount may pale when compared to the expenses incurred in defending a data breach claim.

[Update:  December 18, 2010]
President Obama signed the Act into law.

NLJ: Smaller Law Firms Have Digital Advantage

In a recent National Law Journal article, Adrian Dayton argues that smaller law firms have been much better at jockeying for online positioning and expanding their digital footprint.  Driven by the ultimate goal of search engine optimization (SEO), these firms have been using blogs, FaceBook, Twitter and LinkedIn to get noticed in ways the largest firms are not.

As pointed out by the author, run a Google search for “class action defense”and you will notice that the top listing is a blog produced by the law firm of Jeffer Mangels Butler & Mitchell — a firm with three offices and 138 attorneys.  Given  its blog, the firm dominates in SEO despite being relatively small.  Google’s search algorithms, including its PageRank methodology, place a premium on the sort of fresh content found on blogs.  Search results slanting in favor of smaller law firms pretty much run across the board given “the fact that in the entire AmLaw 100 there are more than 84,000 lawyers and only 130 law blogs.”  Not much in the way of competition.  In other words, if you want to get up in the rankings and get noticed by new clients looking for your perspective on legal matters, having a blog has been the quickest path to achieving that goal.

Why does any of this matter?

Well, according to a Greentarget/ALM survey, 35% of in-house counsel had visited a law blog within the past 24 hours and forty-three percent of in-house counsel cited law blogs among their top “go-to” sources for news and information.  This sort of “drip marketing” may take law firms months or even years to obtain an engagement given the strong  existing relationships that first need to be shaken loose.  On the other hand, it is likely the most cost-effective way to get the ball rolling.

Given free publishing tools such as WordPress coupled with inexpensive professional themes and low-cost hosting options, the only real cost is the time it takes to write the blog post.  If you are a competent brief writer, it should take you no more than 30 minutes of your time every few days.   And, as correctly pointed out by Adrian Dayton, this small time commitment is well worth it.  Try it.  You may even enjoy the experience.  Just make sure what you write is not something that will impact a client relationship — after all, that is likely the reason larger firms have generally stayed away from the blogosphere.

Patient Protection and Affordable Care Act Changes Begin Today

It’s been six months since passage of the administration’s healthcare reform act — the Patient Protection and Affordability Care Act (PPACA).   As reported in newspapers around the country, that means that for those health plans that begin today: 

  • Parents will be able to keep their young adult children on their group health plan up to age 26, regardless of whether the adult child lives with the parent, is a full-time student, disabled or married.
  • Insurance companies will be banned from dropping coverage when an enrollee gets sick.
  • All new plans must offer free preventive services, such as mammograms, colonoscopies and certain child preventive health-care services, meaning plans can’t charge deductibles, co-pays or co-insurance.
  • All employer plans and new plans in the individual market will be prohibited from denying coverage to children under age 19 with pre-existing conditions.
  • Parents will be able to select a pediatrician as the primary care provider for their children.
  • Female enrollees will be able to obtain obstetrical/gynecological specialist services without a referral from another primary care provider.
  • Group plans will be banned from imposing lifetime benefit limits and will start gradually eliminating annual benefit limits.
  • New plans must provide consumers access to an internal and external claims appeals process.

For plans operating on the calendar year, these new PPACA requirements will take effect on January 1, 2011.

Tech Vendors Need Strong Hybrid Mix of Legal and Risk Management Counsel to Avoid Fraud Lawsuits

A growing list of technolgy vendor settlements should be a wake up call to tech vendors both large and small.   For example, last month, HP resolved a legacy EDP lawsuit to the tune of $460 million.  The facts of the case are not very complicated.  A decade ago, British firm BSkyB retained EDS to provide a CRM system for BSkyB’s help centers.  Two years later the contract was terminated and BSkyB completed the job using its own IT staff.  It also filed an action against EDS for misrepresention regarding its capabilities.  Although the initial contract included a liability clause that capped damages, the clause was ultimately rendered invalid due to fraud.

This past May, SAP and Waste Management announced the settlement of a lawsuit involving a failed ERM implementation.   Waste Management sued SAP for fraud in March 2008 over an allegedly failed waste and recycling revenue management system.   Waste Management allegedly sustained direct damages of over $100 million.   SAP responded in its original Answer that Waste Management didn’t “timely and accurately define its business requirements” nor provide “sufficient, knowledgeable, decision-empowered users and managers” to work on the project.  Much of Waste Management’s allegations turned on representations made by salespersons who were allegedly only concerned about licensing software that would create larger year-end bonuses.   According to its revised complaint, if a newer version had been used, “the multi-million dollar sales price for the software could not be immediately recognized as revenue under the accounting rules for revenue recognition,” and those salespeople involved in the deal would not receive bonuses.  According to its quarterly earnings filing regarding the reported settlement, Waste Management received “a one-time cash payment” in accordance with the settlement. The terms of the settlement were not disclosed.     

The price of a tech suit goes down steeply after fraud charges are dismissed.  For example, a lawsuit brought by a county government went from $10 million in alleged damages to an eventual settlement of $575,000 given there were only breach of contract claims remaining  after the fraud claims were earlier dismissed from the action.   Another action brought by yet another county government may not go as well for the tech vendor (Deloitte Consulting) given the fraud claims remain front and center throughout the complaint filed on May 28, 2010.

Claims are not only brought against tech vendors for millions of dollars.  Last year, Epicor was sued after a client spent $244,656.42 on an ERP implementation.  Again, the complaint sounded in contract breach but had negligent representation as well as fraud claims.  Here’s a list of similar suits

Moreover, tech vendors can include those who sell products such as iPhones rather than license software.   Earlier this month, Apple was hit with numerous suits seeking damages arising from the fact the latest iPhone has significant reception issues depending on how the phone is held.  Specifically, one suit accuses Apple of “general negligence, breach of warranty, deceptive trade practices, intentional misrepresentation, negligent misrepresentation, and fraud by concealment.”

For over twenty-five years, courts have allowed fraud claims to mingle with the negligence and breach of contract claims typically brought against technology vendors.  It is so much easier to prove (as was done in the EDP suit) that someone lied when contracting as opposed to showing how a contracted for systems implementation was not technically performing as promised.  Moreover, if fraud is proven, it will not only vitiate the limitation of liability and exclusion of consequential damages found in nearly all tech agreements, punitive damages may also become available.  In other words, a fraud claim is the magic bullet used by most plaintiffs to go around iron-clad contracts and the bar against awarding punitive damages in a contract dispute.

To best combat fraud claims, there are certain things that a tech vendor should do before, during and after a contract is negotiated.  For counsel on that front and for access to related risk management and contracting tools, please reach out.

Exposure to Software Copyright Claims

Claims arising out of internally-used software continue to be a significant retained IT risk factor.  When President Obama picked the Business Software Alliance’s General Counsel Neil MacBride for a senior Justice Department post, it was a clear message that we will see increased software compliance audits – and possible new penalties.  The increasing use of open source software is also leading to unanticipated software copyright exposures. In other words, the reasons continue to mount why users of desktop software should carefully monitor their use of software and maintain careful records of each license.

CT AG Successfully Uses HITECH Act to Settle HIPAA Breach

Taking advantage of a federal law passed last year, Connecticut’s Attorney General, Richard Blumenthal, announced yesterday a settlement with HMO Health Net that includes a corrective action plan, a $250,000 payment to the State of Connecticut (with an additional potential pot of $500,000), and increased credit monitoring and ID theft insurance to potential victims.  According to Blumenthal’s original lawsuit, Health Net lost or had stolen a disk drive last year containing sensitive information from 1.5 million persons – including 446,000 Connecticut residents.  The drive contained names, addresses, social security numbers, HIPAA-protected health information and financial information. 

The underlying federal statute relied upon by Blumenthal when bringing suit against Health Net is Title XIII of the American Recovery and Reinvestment Act of 2009, also known as the Health Information Technology for Economic and Clinical Health Act (the HITECH Act).  The HITECH Act not only offers financial incentives to prod the use of electronic health records (EHR) but also greatly expands the protections afforded such information.  For example, it creates the first federal breach notification law.   Covered Entities and Business Associates that “access, maintain, retain, modify, record, store, destroy or otherwise hold, use or disclose” unsecured personal health information must disclose to the owner notice of a breach.  See Sections 13402(a) and (b) of the HITECH Act.    

In obtaining yesterday’s settlement, Blumenthal was the first Attorney General to take advantage of the HITECH Act’s grant of HIPAA compliance jurisdiction to state Attorney Generals.   It is entirely likely that other states will now jump on this bandwagon – especially those with AGs seeking higher political office.   In fact, last month AG’s from across the country were scheduled to receive training on HIPAA compliance from Booz Allen Hamilton

As for the Health Net settlement, the amounts paid to Connecticut are small compared to what has been spent to date dealing with the breach.  According to the settlement agreement, Health Net allegedly has already spent more than $7 million to investigate what happened to the disk drive, notify members and provide credit monitoring and identity-theft insurance to those potentially impacted.   It is incidents like these that showcase the value of requiring strong indemnification language backed by an equally strong requirement of data breach insurance coverage for those firms managing or holding your patients’ or members’ sensitive medical information.

No Need to Pierce Corporate Veil Under NJ Consumer Fraud Act

A New Jersey Appellate Division panel ruled on June 23, 2010 that principals of a company can be found personally liable under New Jersey’s Consumer Fraud Act (CFA) even without actual knowledge about alleged unlawful practices sufficient to pierce the corporate veil.   As well, the court ruled that there was no need to prove intent before triggering the treble damages regulations under the statute. 

The case involved a poorly constructed landscape project.  The lower court allowed the claims against the landscaping company to go to a jury because, in violation of CFA regulations, there was no written contract and the workers accepted final payment without obtaining permission from the plaintiffs after the construction plans were changed.   The claims against the principals of the defendant company were dismissed because the lower court found they did not directly participate in the project sufficient to pierce the corporate veil.

A jury found in favor of the plaintiffs and trebled damages to $490,000.  The plaintiffs appealed seeking to get the principals to pay the award.  The Appellate Division reversed the lower court’s decision and remanded to determine if the principals had any personal participation in any of the two regulatory violations.  In other words, there was no need to determine if there was culpable conduct sufficient to pierce the corporate veil but there was the need to at least show they participated in the conduct that gave rise to the regulatory violations.

This is a significant decision.  It evaporates by way of the New Jersey CFA the protections normally afforded directors and officers of a company.  The corporate immunity protecting principals of a company is usually only tossed aside for fraudulent conduct that is sufficient to pierce the corporate veil.   By allowing treble damages against principals without any such showing, this decision becomes yet another loud wake-up call for New Jersey private companies as to the benefits of Directors and Officers insurance.

Symantec Survey: SMBs Invest in Addressing Data Security Threats

In the recently published Symantec survey of 2,500 executives with responsibility for IT security – half from companies of less than 100 employees – cyber-attacks were ranked as their top business risk.  And, of those polled by Symantec, 74 percent said they were “somewhat or extremely concerned” about losing sensitive electronic data.  In fact, 42 percent lost confidential or proprietary information sometime in the past and 73 percent of the respondents were victims of cyber-attacks just this past year.  

Addressing this challenge, SMBs are now spending an average of $51,000 a year, or about two-thirds of IT staff time, working on “information protection, including computer security, backup, recovery, and archiving, as well as disaster preparedness.”  This seems like a sound investment given that the average cost of a breach to these SMBs was $188,242.

All of this fear seems to be somewhat well placed given that 95 percent of security and compliance professionals recently polled by nCircle believe that data breaches have been and will continue to increase in 2010. Knowing what to do in the event of a data breach is not necessarily intuitive.

Here We Go Again — FTC Extends Red Flags Enforcement Deadline

It what has come to be a now common event, the FTC has decided to extend again the enforcement of its Red Flags Regulations.  Succumbing to Congressional pressure, the FTC has decided to extend the prior deadline – which was last slated for June 1, 2010 – until December 31, 2010.   Most privacy professionals have probably lost track by now as to how many times the enforcement of these regulations has been pushed back.   The original date was November 1, 2008!  According to the FTC press release, “If Congress passes legislation limiting the scope of the Red Flags Rule with an effective date earlier than December 31, 2010, the Commission will begin enforcement as of that effective date.”

Given that Congress will now “clarify” who is subject to these regulations, it is highly likely that those companies who have not yet complied will wait until such clarification comes down the pike.  Who can blame them?  Certainly not the FTC.

Most Important Lesson Learned from Supermarket Data Breach

It has been over two years since the grocery chain Hannaford Brothers announced a breach of its network security that exposed over 4 million credit card numbers and led to 1,800 cases of fraud.   In fact, a quick review of the Privacy Clearinghouse’s Chronology of Data Breaches shows that Hannaford is not the only supermarket chain to have sustained a data breach. 

Several years ago, Ahold USA (parent company of Stop & Shop and Giant stores) sustained a breach via its subcontractor Electronic Data Systems.   Numerous Stop & Shop Supermarkets in Rhode Island and Massachusetts had credit and debit card account information stolen, including PIN numbers, by thieves who apparently tampered with checkout-line card readers and PIN pads.  Albertsons (Save Mart Supermarkets) in Alameda, California also had credit and debit card numbers stolen using bogus checkout-line card readers.   And, Lunardi’s Supermarket in Los Gatos, California had a similar experience with  ATM and credit card readers that quickly led to the theft of  $300,000.  

What makes the Hannaford incident noteworthy is the fact that the chain was supposedly PCI compliant at the time.  According to the indictment filed against the Hannaford mastermind, the theft was a result of a hack into corporate computer networks that allowed placement of malware which, in turn, provided backdoor access to the networks — and credit card information.  The means of attack was the commonly used SQL Injection Attack. 

In other words, being PCI compliant should never be the ultimate goal of your security strategy.   Whether you are a supermarket chain or a large law firm, a risk management approach to network security and privacy should always take precedent.   Most companies — large and small — still apply a uniform approach to security that treats all data the same.  The ultimate lesson learned from the Hannaford breach:   Always make sure your most valuable data is always most protected.   It really does not matter whether your company sells fruits and vegetables or builds nuclear missiles.