Retaliatory Discharge After Bringing Worker’s Compensation Claim

Have you been fired after making a claim for worker’s compensation? You might have a claim for retaliatory discharge. Under Louisiana Revised Statute 23:1361, an employer may not fire a worker for bringing a workers compensation claim. Under the statute, an employer that engages in this retaliatory action is subject to a tort suit for wrongful termination, with recovery in the amount of not more than one year’s salary, plus attorney’s fees and court costs.

The resulting legal action is one in employment law, and not governed by the workers compensation statutes. Therefore, the claim should be brought in district court.  Sampson v. Wendy’s Management Inc., 593 So.2d 336 (La. 1992).

Russian Malware “SoakSoak” Attacks WordPress Sites

Russian Malware called “SoakSoak” has infected around 100,000 WordPress sites over the past 48 hours, turning blogs into platforms from which the Malware is infecting other users.

The issue seems to be limited to user-hosted WordPress websites that are utilizing the third-party WordPress plug-in RevSlide. To read more about this development, click Here.

Google Search Tips

Think you’re a good Googler? Check out these tips for using Google search from Time.com: Time’s Google Search Tips.

Dollree Mapp’s Death and Her Legacy for Police Everywhere

Another landmark figure in U.S. legal history has died. Dollree Mapp was an Ohio citizen who, in 1957, denied police entry to search her home without a valid search warrant. The officers thereafter brandished a fake warrant and made entry into her home, where they found “lewd and lascivious materials” as defined under Ohio law and arrested her. Mapp was convicted of the charges, but challenged the case on the grounds of the warrant and appealed all the way to the United States Supreme Court.

The landmark Supreme Court case, Mapp v. Ohio, 367 U.S. 643 (1961), resulted in a 6-3 decision in which Ms. Mapp’s conviction was overturned when the Court recognized that the products of warrantless searches should be excluded as inadmissible evidence. In doing so, the Court extended the exclusionary rule for warrantless searches to state actions. In the decades since then, a great number of appeals have ensued to define the exclusionary rule and its limitations. For further reading on the case, the exclusionary rule, and Ms. Mapp, see the New York Times article Dollree Mapp, Who Defied Police Search in Landmark Case, Is Dead.

Your Private Health Information, Leaked

While the Target, LinkedIn, and Home Depot data breaches have gathered significant media attention, major retail providers and businesses as we usually think of them aren’t the only ones with sensitive data. Just as alarming as the fact that these companies suffered data breaches is the fact that hospitals and other medical providers are also under attack from hackers. Even more terrifying than having your personal financial information in the hands of an unauthorized party is that they could have your medical records.

Many people consider their medical records far more personal and sensitive than their financial information, and for good reason – our private health information is intimately personal, and it should remain that way. Companies have a duty to safeguard your health information and should be held responsible for breaches in their data systems. Computer and data forensics can trace data breaches to determine how the breach occurred.

If your hospital, physician, or other medical provider has suffered a data breach, just like in the case of PII, PHI disclosures must be made to the party whose information was compromised, under the Louisiana Data Breach Notification Law, La. R.S. § 51:3071 et seq.

If you’ve received notice of a data breach from your physician, you might be entitled to recovery under the law. Contact me to protect your rights if you’ve received notification of a data breach involving your medical records from your physician or hospital.

LSBA YLD Elections; Supporting Scott Sternberg

Dear fellow young attorneys,

If you haven’t already, I encourage you to vote in the LSBA Young Lawyer’s Division elections, taking place right now, and ending this coming Monday. This election will determine the leadership and direction of the YLD, a group which plays a key role in matters dealing with young attorneys in Louisiana.

I’d like to put my support behind my friend Scott Sternberg, a fellow LSU and LSU Law alum. Many of you know Scott and for those who don’t, I can assure you that, if elected, he will do a fantastic job representing the YLD Division.

Scott Sternberg is one of the first people I met from the LSU Law Center, having met at a cocktail event at Chancellor Weiss’s house months before classes started my first year of law school. Scott and I kept in touch throughout law school and, over the years, he has been a constant source of career advice and practice advice. He has been my sounding board and a good friend. Scott encouraged me to get involved with YLC, a cause which I, too, am now proud to champion and volunteer with across this great city. Scott possesses many of the characteristics which are needed in any elected position; he is an inviting and open leader who is both thoughtful and responsive. I know him to be a dedicated attorney and husband, an exceptional leader in our community, and a proud father to his son, George.

Scott with his son, George, at a YLC Wednesday at the Square Concert, June 11, 2014

I know Scott will represent us well and I ask that you support him in this election. I encourage you to reach out to him with any questions or concerns, to vote in the LSBA elections, and to share this article with fellow young attorneys. Following below is the text of an email Scott wrote and asked me to share with others:

Dear Fellow Young Lawyer:

I’m Scott Sternberg, an attorney at Baldwin Haspel here in New Orleans, and I’m running for the District 1 (Orleans) seat on the Louisiana State Bar Association Young Lawyer’s Division Council. The election begins November 17 — voting is now open  — and ends December 15. You should receive an e-ballot from LSBA_Election_Admin@vres.us with instructions on how to vote online. If you do not receive an E-ballot, you can visit https://www.lsba.org/BarGovernance/Elections.aspx and click “Vote Online Now” to vote.

I would appreciate your consideration as you vote for the District 1 seat on the Young Lawyer’s Division Council. I have been active in the New Orleans community since graduating from LSU Law in 2010. I have served on the Federal Bar Association’s Young Lawyer’s Division Board of Directors since 2012 and volunteered with the Morning at the Federal Courthouse and the Lunch with the Court Programs. I graduated from the Leadership LSBA Program in 2013 and have served on two committees for the LSBA.  Outside of the LSBA, I have shown a commitment to our New Orleans community.  I serve on the Board of the Young Leadership Council, currently finishing a one-year term as the General Counsel.  I  regularly participate in volunteer and pro bono activities. I also teach at Loyola New Orleans’ School of Mass Communication.

If you elect me as your representative on the Young Lawyers’ Division Council, I promise to be a responsive, attentive representative for your positions. If you have encountered me before, you know that I am the kind of person who will go out of his way to make sure the LSBA’s YLD is attentive to your wants and needs as a young lawyer in New Orleans. I will work with the Council, including our other District 1 Representative (currently Dylan Thriffiley of the Kean Miller firm) to ensure that our programs run efficiently and our voices are heard.

If you have any questions, please let me know at ssternberg@bhbmlaw.com. I hope you will consider voting for me. In addition, I hope you will consider voting for my friends and fellow young attorneys Larry Centola, Micah Fincher, Ryan McCabe and Degan Skylar Rosenbloom for seats in the House of Delegates. The election for all offices ends December 15.

Feel free to forward this e-mail to anyone in the Young Lawyers Division, which comprises anyone under 39 years of age or has less than 5 years practicing law.

Best,

Scott Sternberg

Data Breach Claims – What they are and What’s at Risk

“Data breach” refers to an incident whereby an individual, application, or service accesses, views, or retrieves data, illegally or without authorization. Data breaches are security breaches that are specifically designed to steal data and publish that information in an unsecured location or utilize that information in an unauthorized manner. Affected information can include personal identifiable information (known as PII; includes information such as an individual’s name, date of birth, social security number, credit/debit card numbers, account login credentials, driver’s license numbers; responsible for 57.2% of data breach claims), personal health information (PHI; responsible for 27.2% of data breach claims), trade secrets (responsible for 1.4% of data breach claims), or other information.

Louisiana Supreme Court Rules the Time Period for Survival Actions Prescriptive Rather than Peremptive

Do you have a family member who died years ago, but only recently learned that their death might be due to the fault of another? Under a recent decision from the Louisiana Supreme Court, you might still be able to bring your claims for their death.

A recent decision by the Louisiana Supreme Court will allow certain individuals to bring claims for survival action when the victim died years earlier. In Watkins v. Exxon Mobil Corporation, 13-1545 (La. 5/7/14), 145 So.3d 237, the Court clarified that survival actions under Louisiana law are subject to prescriptive rather than peremptive periods, opening the door for plaintiffs to file suit within one year of knowing of their cause of action, rather than one year from the date of death of the victim.

The plaintiff, Patricia Watkins, filed suit on June 17, 2011, setting forth claims under wrongful death and survival action relating to the death of her father, who had died years earlier, on December 27, 1986. The plaintiff alleged that her father had been exposed to naturally occurring radioactive material (“NORM”) by the defendants and claimed that, under the principle of contra non valentem, she did not have notice of her causes of action until June 22, 2010, making her filing of June 17, 2011, within one year of having knowledge of her claim.

The defendants filed exceptions of prescription, peremption, and no cause of action, which were sustained by the district court, finding the one-year time period governing survival actions to be peremptive under La. Civ. Code art. 2315.1(A) and, therefore, not capable of renunciation, interruption, or suspension, even under the doctrine of contra non valentem. Thus, the court dismissed the plaintiff’s suit as untimely since it had been filed more than a year after the death of her father. On appeal, however, the Fourth Circuit reversed the district court, finding that the 1986 amendment to article 2315.1 made the period prescriptive rather than peremptive, allowing for contra non valentem to suspend the running of the prescriptive period. Watkins v. Exxon Mobil Corporation, 12-0477 (La. App. 4 Cir. 5/29/13), 117 So.3d 548.

The Louisiana Supreme Court, per Justice Guidry, looked to the plain language of article 2315.1, legislative intent, and policy considerations in affirming the Fourth Circuit’s ruling that the one-year time limitation is a period of prescription rather than peremption, and remanded the case to the district court for further proceedings. Watkins v. Exxon Mobil Corporation, 13-1545, p. 12 (La. 5/7/14), 145 So.3d 237, 244. By allowing survival action claims to be brought more than a year after the death of the victim, the Court expanded the rights of victims’ families to file survival action claims if prescription has been interrupted or suspended. As the period is prescriptive rather than peremptive, survivors may bring their claims even years after the victim’s death, which could lead to a flurry of survival actions from claimants who, for years, were unaware they could even bring such a claim.

What does this mean for you? If you have a family member who died but for years were unaware of knowing you had a cause of action for their death, you may still have a valid claim for damages under Louisiana law. Our firm has the knowledge and experience to bring your claim to court and recover what you are entitled to. Contact me today to discuss your claim.

An Intro, A Dedication

I’ve long thought about cementing my thoughts somewhere so that I could reflect on them years later in my old age and wisdom. Somehow or another, I always found ways to avoid doing just that. In addition to blaming an unpredictable and busy schedule, I blamed it on the fact that I never knew the vessel to share my story. I thought to myself: I can’t write songs because I am not a musician. I can’t keep a journal because I harbor no secrets. I can’t write a book because I’m not famous, who would read it? So I figured I’d write a blog, because I am a millenial.

Regardless of form, the catharsis that comes from writing provides a feeling like none other. I feel the burden being lifted off my shoulders now that I will finally be telling MY STORY. I write now with the hope that this blog will be the first of many things to come. I plan on using this platform to share thoughts on my life and the law, with those two concepts often intersecting as both my life and fate will dictate.

And on that note, a dedication. Every great work, be it of prose, of art, of architecture, or in this case, of blog, deserves such a dedication. (Not to be presumptuous, but let’s be honest, I’ve never been one to aim low.)

I dedicate this site to all those who have inspired me and who have helped me along my journey. To my family and friends; without you, I would have no causes for which to fight. To my mom, Robin, who always manages to find a way, to my dad, Bob, who has always been there to light my path, to my brother, Matt, who has been my greatest supporter, to the people of LSU Campus Life, who taught me that college is so much more than what happens in the classroom, to the Texas chapter of Sigma Alpha Mu fraternity, who took me in like a brother at a time when I needed it most, to Ed Song, who challenged me to think critically about my life, to Judge Guy Holdridge, who taught me that law is best discussed with friends and a frosted bottle of beer, to Johnny DeGravelles, who showed me how much good attorneys can do when they are fortunate enough to fight for something they are passionate about and truly believe in, to Don Cazayoux, to Rene Salomon, to Randy Canche, whose endless passion and pursuit of perfection is a never-ending source of inspiration, to Jason Abate from Country Day, to Jim Ferguson of McCallum High School, to the memory of Rana Siam, who gave me my first taste of the law as my high school mock trial coach, and to Rubin “Hurricane” Carter, whose fight for justice helped inspire me to become an attorney. Many thanks to you all – I hope I can carry the torch for you and provide someone with the inspiration you so graciously bestowed upon me. Perhaps most importantly, to those who seek to follow in the footsteps of our generation, it is my most sincere hope that we will lay the groundwork for you to achieve great things.