FBA 2013 – Panel Descriptions for the 2013 Annual Meeting and Convention

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Affordable Care Act
Anderson, Helgen, Davis & Nissen, P.A., a Minneapolis, Minnesota law firm specializing in the representation of employee benefit plans, will present information on the implementation of the Affordable Care Act to the 2013 Annual Conference attendees. This presentation will address three areas of the legislation that we consider potential sources of litigation for employers and insurers. Under the Employer Shared Responsibility Tax, large employers may face significant taxes. The rules that implement this tax, however, are complex and untested. Until the rules are refined through litigation, we anticipate employer challenges to IRS assessments in Federal Tax Court. Additionally, the Affordable Care Act affects insurers profoundly, subjecting them to a completely new regulatory regime. One particularly interesting element of the new regulatory apparatus is the Risk Adjustment Program. We will discuss some of the aspects of the Program the Federal courts may be asked to review. Finally, the Affordable Care Act contains whistleblower provisions providing each employee the right to assert a claim for monetary damages for interference with rights under the Act. We will discuss the issues employers may anticipate in complying with these whistleblower provisions.

Daubert Motions: There Has Got to be a Better Way
Daubert motions are one of the most time consuming and uncertain aspects of federal civil litigation.  In the twenty years since this landmark opinion was handed down, there have been changes in the Federal Rules of Civil Procedure relating to expert reports, but there has been no change, or any clear guidance, relating to dealing with Daubert challenges and the tremendous costs to both the judiciary and the litigants associated with dealing with these issues.  As a result, Daubert disputes are uncertain, expensive, and often unfair to both sides.  This presentation will suggest alternatives to the present method of handling Daubert issues that will reduce the costs to both litigants and the judiciary, and be consistent with the demands of the 7th Amendment that juries are supposed to decide questions of fact – not judges.

From Muskets to M-16s: The History and Future Challenges of Gun Policy
This program will cover:

  • The history of gun policy in the United States, including the Second Amendment, the National Firearms Act, the Gun Control Act, and recent Supreme Court decisions;
  • Essential background on the technology and terminology involved in regulating firearms
  • Federal options for gun policy and violence reduction
  • Ongoing efforts by states to regulate and deregulate firearms

This subject is of critical importance due to recent events, court decisions, and the rapid evolution of federal and state gun policy.  Additionally, an understanding of the technology and history is highly relevant to a wide section of the federal bar, including judges, criminal attorneys, and policymakers.

The Future of Federal Class Actions
The Supreme Court issued its landmark Dukes and Concepcion decisions in the 2011 term, and issued four more class-action decisions this past term. This presentation will look at the impact of Dukes and Concepcion, will review the four new decisions, and will discuss their possible impact and the future of federal class actions.

Issues in Caring for our Military
Presented by: Veteran’s & Military Law and Health Law Sections
Tia Christopher will discuss the prevalence and epidemiology of military sexual violence (MST) and the health correlates of MST and PTSD; the mental, emotional and physical consequences of MST for the victims; the cost of MST for the military, including effects on morale, enlistment, and suicide; and government efforts to prevent MST, focusing on efforts to protect the victims and changing military training to enforce a culture of service.  Hillary Wandler will discuss issues in the structure of the current military health care as relates to veterans, with special focus on the military culture (“the Warrior Ethos”), the mental health workforce factors, and financial barriers. cultural and ethnic disparities, co-morbidities of mental health disorders with physical illness and substance abuse; meeting the challenges of treating veterans with culturally compliant care; quality and type of successful mental health services; and the outlook for the future.

Keeping a Pulse on Class and Collective Actions: An Analysis of Recent Supreme Court and Federal Court Decisions Involving FRCP Rule 23 and the FLSA
The panel will discuss recent, key decisions involving 1) AT&T Mobility, LLC v. Concepcion, — U.S. —, 131 S. Ct. 1740 (2011) (“Concepcion”) and Post-Concepcion cases addressing the Federal Arbitration Act and arbitration agreements that attempt to prohibit both class and collective adjudication; 2) unsettled questions surrounding Federal Rules of Civil Procedure (“FRCP”) Rule 23 prerequisites post Dukes v. Wal-Mart including an analysis of the Supreme Court’s decisions in Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, No. 11-1085, slip op. (U.S., Feb. 27, 2013); Comcast v. Behrend, No. 11-864, slip. op. (U.S. March 27, 2013) and American Express v. Italian Colors Restaurant, et al., No. 12-133 (argued February 27, 2013) and 3) offers of judgment under FRCP Rule 68 in Fair Labor Standards Act collective actions and the effect on FRCP Rule 23 class actions (Genesis Healthcare Corp. v. Symczyk, No. 11-1059, slip op. (U.S. April 16, 2013).

The Long Shot:  How a Young Solo Practitioner Made it to the Supreme Court on a Question Regarding Summary Judgment and Won
Presented by: Young Lawyers Division
After working at a big firm and clerking in federal court, David Mills opened a solo appellate practice in his hometown of Cleveland, Ohio. Little did he realize that just two years later, at 33 years old, he would be featured on the cover of the ABA Journal national magazine for taking a case to the U.S. Supreme Court. In this presentation, Mills will describe how he came to represent a woman named Michelle Ortiz, who was sexually assaulted by a jail guard, won a jury verdict against state officials under the federal civil-rights statute (42 U.S.C. § 1983), and then lost on appeal in the Sixth Circuit. Mills will discuss how he successfully petitioned the U.S. Supreme Court to grant certiorari on an issue of federal civil procedure (regarding the conditions under which the denial of summary judgment can be appealed). In addition to discussing certiorari-stage strategy, Mills will also discuss oral argument at the Supreme Court, and the current state of the law regarding summary-judgment appeals in light of the Court’s unanimous decision in Ortiz’s favor. The presentation will include some fundamental aspects of § 1983 law, such as the defense of qualified immunity and the collateral-order doctrine (which allows for immediate appeals before trial). Mills will also touch on the unique aspects of solo practice.

Private and Government Related Consumer Litigation-Recent Developments and Hot Topics
Presented by: Federal Litigation Section
Consumer litigation has been significantly impacted by a number of decisions by the Supreme Court in this and the last two terms involving class actions, arbitration and standing.  Review the impact of these sea-change opinions with a panel of distinguished judges, state attorneys, corporate counsel, law professors and practitioners from both sides of the docket.

Professional Ethics Issues Relevant to the Federal Practitioner
Presented by: Ethics Committee
This CLE will focus on professional ethics issues relevant to the federal practitioner and will provide attendees with an hour of ethics credit.  In particular, the program will address notable court decisions and changes in federal rules relevant to both civil and criminal federal practice.  Additionally, the panel will touch upon ethical issues unique to practicing in Puerto Rico and the Caribbean.

Social Media in Our Courts:  Discovery, Trial, and Practice Considerations
Social media have changed how we communicate and interact. And wall posts, tweets and online videos are now a treasure trove of evidence in criminal and civil litigation. Employment litigator Joel Schroeder discusses the impact that social media are having in litigation—during investigations, discovery and trial. The presentation focuses on emerging case law and commentary, examining how courts are dealing with discovery disputes and applying old evidentiary rules to a new, more dynamic source of media that are often not easily identifiable, authenticated or free of hearsay. The presentation also touches on ethical issues relating to counsel’s use of social media in litigation, as well as best-practice tips to advise clients about accessing, preserving and producing data contained on social networking sites.

The Status and Future of Reentry Courts
Presented by: Criminal Law Section
Judges Castillo and Aiken will discuss the history and current status of reentry courts in the federal system.   Judge Castillo will share his experience in presiding over the Northern District of Illinois’ Reentry Court, and Judge Aiken will describe the unique features of the District of Oregon’s Reentry Court as well as her efforts to expand the use of Reentry Courts throughout the nation.  The program will also touch upon the recurring challenges faced by Reentry Court participants and the role of U.S. Probation, the U.S. Attorney’s office, the Federal Defender’s office, and other private and non-profit community organizations such as the Salvation Army, in Reentry Courts.

Taming a Mass Torts MDL Case:  A Review of the Expert Handling of the 1986 San Juan DuPont Plaza Hotel Fire Case – Lessons to Draw in 2013
Presented by: Federal Career Services Division
On New Year’s Eve, December 31, 1986, a fire was set by disgruntled employees of the DuPont Plaza Hotel who were in the middle of a labor dispute with the owners of the hotel.  The subsequent, tort-based litigation resulted in the filing of 264 suits in federal and state court for injuries and 97 deaths against more than 250 defendants.  The January 11, 1988 edition of The National Law Journal described the litigation as “fast becoming the largest mass disaster litigation in United States history.”  These cases were handled with historic efficiency by Judge Raymond L. Acosta of the District of Puerto Rico after consolidation by the Judicial Panel on Multidistrict Litigation (“MDL”).  The trial commenced on March 15, 1989, a mere twenty seven months after the fire.  This program will endeavor to review the important procedural and logistical steps taken during this historic litigation by having a panel discussion with the core attorneys who worked on this case and Judge Acosta.  The presentation will focus on lessons MDL practitioners and tort attorneys can take away from the DuPont Plaza Hotel litigation.

Top Ten Bankruptcy Cases of the Past Year
Presented by:  Bankruptcy Law Section
Bankruptcy law is an ever evolving and growing area of practice. This program will focus on the 10 bankruptcy cases from the past year that will most likely affect the practices of bankruptcy attorneys, as well as of attorneys whose clients may be impacted by bankruptcy issues. Attendees will receive a paper containing detailed descriptions of the cases deemed the 10 most significant from the past year, as well as summaries of other important decisions.  Cases will be selected from business and consumer topics. The program will be presented by Bankruptcy Judges from across the country – for this program, we are pleased to have as presenters Judge Barry Russell from the Ninth Circuit (California), Judge Craig Gargotta from the Fifth Circuit (Texas), and Judge Alan Trust from the Second Circuit (New York); we are also fortunate to have Judge Brian Tester from the First Circuit who sits in Puerto Rico serving as moderator.  The panel will take questions from the audience.

Trends in Labor and Employment Law: A Panel Discussion
Presented by: Labor & Employment Section
This panel session will review the most important issues for 2013, specifically including decisions and challenges facing employers in complying with certain provisions of the Patient Protection and Affordable Care Act (“PPACA”) such as the employer mandate and whistleblower provisions, the increasing role and risks of social media in labor and employment controversies, the challenges facing the National Labor Relations Board after the D.C. Circuit’s Noel Canning decision, as well as other notable Court decisions involving equal employment opportunity, social media in the workplace, retaliation, and wage and hour issues. The session will provide an overview for attorneys who do not regularly practice in this area, as well as the latest developments for labor and employment law practitioners in Puerto Rico and across the country.

Women in the Law: Panel One:  Lessons from Our Past and Judiciary
This panel will explore the historical role women have played in the development of American law.  Furthermore, the panel will discuss the role women have played within the federal judiciary.  The panel will also address the development of law related to sex equality.  In considering how the law has developed in this area, panelists will comment on how the law profession should develop in the future.

Women in Law: Panel Two:  Understanding the Impact of Gender on the Retention and Advancement of Women in Legal Workplaces
The panel will explore existing law applicable to gender and sex issues arising in the workplace with a special emphasis on legal workplace environments.  Moreover, the panelists will provide specific examples of how they have addressed issues involving sex and gender in the workplace.  In this regard, the panel will provide both information on the existing law as well as constituting a skills building session.

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