Mandell Menkes LLC

Mandell Menkes Brings a Potentially Devastating Medical Data Breach to a Successful Conclusion

dsullivan — Wed, 21 Mar 2012 16:38:19 +0000

On March 7, 2012 the U.S. Department of Health and Human Services, Office for Civil Rights (OCR) issued notice to Mandell Menkes that it had concluded its investigation of a security breach involving protected health information (PHI) maintained by Mandell Menkes’ client, and did not intend to take any further action. The letter marked the end of a series of events which were set in motion six months earlier when the OCR, acting on a third party complaint, found medical records of thousands of the client’s patients allegedly abandoned in the garage of a residential building. Mandell Menkes represented the client in every stage of the process, from forming its strategy and its initial response to the OCR to the successful conclusion of the investigation. During the process, Mandell Menkes worked with the client to revise its documents and procedures to prevent a similar situation from recurring in the future.

The complaint arose from the clinic’s agreement with a recovery company specializing in the extraction of silver from x-ray film. The agreement provided that the recovery company would extract silver from certain archived x-ray film and dispose of the remaining material appropriately. In violation of the agreement, a recovery company employee removed numerous boxes of x-ray film and other PHI from the client’s premises and left the records in the garage of his rented residence. The employee’s landlord found the records and alerted OCR. The OCR immediately launched a large scale investigation of whether the client had violated, among other laws, the HIPAA Security, Privacy and Breach Notification rules.

Throughout the investigation, Mandell Menkes represented the clinic at meetings with OCR; coordinated the clinic’s efforts to successfully retrieve and secure the abandoned PHI; drafted HIPAA-compliant policies and procedures for the clinic related to PHI disclosures, safeguards, business associates, record disposal and workforce training; prepared and disseminated breach notifications to the affected patients, local media and Secretary of the U.S. Department of Health and Human Services and helped the client respond to public inquiries following breach notification. Based on these actions, OCR concluded its investigation without requiring a formal hearing or imposing any civil money penalties.

Elizabeth Morris joins Mandell Menkes

dsullivan — Wed, 21 Mar 2012 15:18:25 +0000

Ms. Morris is a 2008 graduate of the University of Chicago Law School. Before joining Mandell Menkes, Ms. Morris clerked for the Honorable Rita Novak of the Circuit Court of Cook County, Chancery Division, where she worked on a broad variety of equitable matters that included insurance coverage cases, administrative reviews, non-competes, injunctions, property disputes, and trusts. Before her clerkship, she was a litigation associate at a large firm in Chicago and worked in a number of different areas, including intellectual property, securities, and internal investigations, and pro bono matters, including a habeas corpus case.

Social Media, Data Privacy, Online Gambling, and Other Hot Topics in Advertising & Promotions

dsullivan — Thu, 15 Mar 2012 16:34:24 +0000

Steve Baron will be one of the experts discussing what you should know about ads and promotions in 2012 and beyond.

Reporters Committee for Freedom of the Press will partner with Mandell Menkes LLC for G-8 Summit in Chicago

dsullivan — Mon, 06 Feb 2012 14:52:50 +0000

The Reporters Committee is working with Mandell Menkes LLC to establish a hotline for journalists from around the world who will be covering the G-8 Summit in Chicago from May 15th through the 22nd. Hotline lawyers plan to work with police and public officials ahead of the political conventions and the G-8 Summit to help anticipate and resolve potential problems for journalists who may be arrested or detained during demonstrations or other disturbances that occur during the conventions.

Mandell Menkes client “The Duke of Earl” “In a Groovy Situation” following jury verdict

jfitzpatrick — Thu, 02 Feb 2012 17:02:20 +0000

In May of 2008, legendary Chicago recording artist Gene Chandler entered into a written contract with Canterbury Productions, a concert promotion company headed by Henry Farag, concerning Chandler’s performance of his greatest hits at an upcoming “Ultimate Doo Wop” concert at the Chicago Theatre. On May 10th, Chandler performed a 20 minute set, closing with his classic number 1 hit “The Duke of Earl”, and received a rousing ovation from the audience. After his performance, the producer’s brother, Robert Farag, angrily confronted Chandler in the upper wings of the theatre outside of Chandler’s dressing room. The situation escalated and led to a physical altercation in which Farag began throwing punches at Chandler. After Chandler’s son separated the two men, producer Henry Farag ordered a security team to evict Chandler from the theater, preventing him from singing in the ensemble finale of “Goodnight Sweetheart” and attending an after-show “Meet and Greet” reception with concertgoers. Farag then refused to pay Chandler’s $4,000 performance fee.

Mandell Menkes filed a lawsuit on Chandler’s behalf in August of 2008, seeking to recover his performance fee and to prevent Canterbury from continuing to use his name and likeness in promoting its business. Canterbury waited until at least June of 2009 to remove Chandler from its website.

On the breach of contract claim, the defendants contended that Chandler did not fulfill his contractual obligations because he did not participate in the Finale or the Meet and Greet. On the claim for violation of the Illinois Right of Publicity Act, the defendants admitted liability (using Chandler’s name and likeness for a commercial purpose without written permission) but asserted an affirmative defense that a 1 year statute of limitations precluded the claim. The defendants further argued that they had not willfully misappropriated the name and likeness and, therefore, the jury should not award exemplary damages.

Following a three day trial commencing on January 17, 2012, the jury entered a verdict for Chandler on both claims and found that Canterbury willfully misappropriated Chandler’s name and likeness. Accordingly, the jury awarded Chandler the full measure of damages sought for breach of contract, $1,000 in pre-set statutory damages for violation of the Illinois Right of Publicity Act, and $20,000 in punitive damages for willful misappropriation under the Act. Chandler is preparing to submit a post-trial petition for attorneys fees and costs which he may recover as a prevailing party under the Act. Mandell Menkes partner John Fitzpatrick served as lead counsel during the trial.

Mandell Menkes Lawyers Obtain Dismissal in CRM Implementation Case

dsullivan — Thu, 26 Jan 2012 18:16:34 +0000

On January 26, 2012, United States District Judge James Holderman issued an opinion granting Oracle’s motion to dismiss a complaint
seeking to collect from Oracle a judgment that the plaintiff received in an unrelated action for breach of contract against one of Oracle’s “business
partners.” The complaint, seeking relief under a single count of “Joint and Several Liability,” attempted to enforce the prior judgment against Oracle because of Oracle’s alleged partnership with the “business partner” without having to prove the underlying breach of contract allegations in the current action. Judge Holderman held that although a partner is liable under Illinois law for partnership debts, an alleged partner cannot be held liable for a judgment against one of its alleged partners when it is neither it nor the alleged partnership entity itself is a party to the underlying proceeding.

Judge Holderman explained that Illinois law “allow[s plaintiff to] recover from Oracle for the breach of contract if it can prove that Oracle and [the alleged partner] were partners. [The law] also would allow [the plaintiff] to recover from Oracle a judgment entered against the alleged Oracle/[business partner] partnership. Unfortunately, [plaintiff] seeks to do neither in the present lawsuit. Rather, it seeks to impose vicarious liability upon Oracle for a judgment to which it was not a party. While [Illinois law] allows [plaintiff] to bring a breach of contract action against Oracle, provided such a claim is timely, it does not allow [plaintiff] to proceed as it has attempted to do through its pending complaint.”

Stephen Rosenfeld and Rebecca Edwards were the Mandell Menkes lawyers representing Oracle in this matter.

Mandell Menkes wins summary judgment in technology licensing dispute

jfitzpatrick — Fri, 21 Oct 2011 21:54:50 +0000

On October 21, 2011, United States District Judge Elaine E. Bucklo issued an opinion entering summary judgment in favor of our client, MDS, Inc. Judge Bucklo found that the plaintiff could not dispute that he had been paid all royalties … Read More »

Defamation lawsuit against two newspaper employees dismissed

jfitzpatrick — Mon, 10 Oct 2011 05:00:22 +0000

Mandell Menkes lawyers prevailed on a motion to dismiss a defamation suit with ancillary claims for invasion of privacy, trespass, battery, assault and stalking on behalf of two central Illinois newspaper employees. The matter involved the newspaper’s report of an incident that ultimately led to plaintiff’s arrest and conviction for multiple criminal offenses.

The subject articles described the heroic efforts of one newspaper employee who noticed plaintiff acting suspiciously one morning on the street corner where he was servicing a newspaper vending machine. The employee reported that plaintiff appeared intoxicated and that he saw a large alcohol bottle on the front seat of plaintiff’s van parked on the street. Plaintiff initiated a brief altercation and then entered his vehicle. The newspaper employee kept watch over plaintiff and followed him in his own vehicle as plaintiff began driving erratically across town. The employee contacted police and followed plaintiff at a safe distance until he was apprehended by police and arrested. After reading the newspaper reports of the incident, plaintiff filed suit against the newspaper employee and the reporter who published the story of the incident. The newspaper employees moved to dismiss the complaint for failure to state any viable claims and on September 28, 2011, the court dismissed the entire complaint with prejudice. On October 14, 2011 the plaintiff filed a Notice of Appeal. Mandell Menkes partner Steven Mandell and associate Natalie Harris prepared the briefs in support of the motion to dismiss which was decided on the papers.

Jury awards our client full measure of damages on counterclaim and denies plaintiff’s claim

jfitzpatrick — Fri, 07 Oct 2011 05:00:34 +0000

A telecommunications provider represented by Mandell Menkes recently prevailed on all issues tried to a Cook County jury following two weeks of testimony and argument. The plaintiff in the case, a national storage company, alleged that our client committed common law fraud and negligent misrepresentation, violated the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFDBPA”), and breached a series of contracts by charging for telecommunications services the storage company did not use or want.

At the conclusion of the plaintiff’s case, the court entered a directed verdict in favor of our client on the common law fraud and negligent misrepresentation counts, and the plaintiff voluntarily dismissed its ICFDBPA claim with prejudice. In our client’s case in chief, we presented evidence of the terms of the parties’ contractual agreements and emphasized that the plaintiff actually owed our client a substantial sum for unpaid telecommunications services and products. After deliberating for five hours, the jury reached a verdict that: (1) denied any recovery to the plaintiff on its breach of contract claim; and (2) awarded our client, the telecommunications provider, all of the damages sought on its counterclaim plus termination fees and interest for overdue payments. Steve Rosenfeld led the Mandell Menkes trial team with assistance from Rebecca Edwards.

Mandell Menkes wins dismissal of defamation claims under Illinois anti-SLAPP statute

jfitzpatrick — Wed, 21 Sep 2011 05:00:40 +0000

Mandell Menkes recently successfully sought dismissal of claims of defamation and false-light invasion of privacy by asserting immunity under Illinois’s anti-SLAPP statute, the Citizen Participation Act (CPA). In Satkar Hospitality Inc. v. Cook County Board of Review, No. 10‑cv‑6682 (N.D. Ill. Sept. 21, 2011), the plaintiffs, who own a suburban hotel, claimed that WFLD, Chicago’s Fox television station, defamed them by reporting on a possible connection between campaign donations to a state representative and favorable results in property tax appeals. The plaintiffs had appealed their property tax assessment and received a substantial savings. After WFLD ran its report, the Cook County Board of Review held additional hearings and rescinded the plaintiffs’ tax reduction.

Mandell Menkes, representing WFLD, argued that WFLD’s reports were immune from liability under the CPA. The CPA provides broad immunity for “acts in furtherance of the constitutional rights to petition, speech, association, and participation in government,” “regardless of intent or purpose,” and requires that courts award attorneys’ fees to a party that wins dismissal.

Judge Matthew Kennelly granted WFLD’s motion to dismiss under the CPA. He rejected the plaintiffs’ argument that the CPA is unconstitutional. He found that the plaintiffs’ complaint was clearly based on WFLD’s reports, which “were directed at the public and addressed possible political corruption, an obvious matter of public concern,” and “were acts in furtherance of” WFLD’s “right to speak freely.” The court rejected the plaintiffs’ argument that the CPA should not protect “major media organizations” or defendants who are motivated by profit. The court further held that the CPA applies because “objective persons in defendants’ shoes could have reasonably expected to procure a favorable government outcome by publishing the reports,” and it rejected the plaintiffs’ argument that the CPA requires that the moving party “reached out directly to a government entity.”

Mandell Menkes attorneys Steve Mandell, Steve Baron, and Shari Albrecht represent WFLD (and related entities and individuals who were also named as defendants).