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 L E G A L   B R I E F
September 2013
Newsletter Archive
Client Advisory
Negotiating Update
Intellectual Property Update
Wills, Trusts & Estates Update
Firm News
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Campolo, Middleton & McCormick, LLP, is a full-service business law firm that represents clients in a wide variety of legal matters including litigation and appeals; corporate and technology; real estate development and zoning; wills, trusts and estates; labor and employment; personal injury matters including the defense of general liability, construction, premises liability and transportation cases.
3340 Veterans Highway Suite 400
Bohemia, NY 11716
p 631-738-9100
f  631-738-0659

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The information contained in this newsletter is provided for informational purposes only, and should not be construed as legal advice on any subject matter. The Firm provides legal advice and other services only to persons or entities with which it has established an attorney-client relationship. No recipients of information from this newsletter, clients or otherwise, should act or refrain from acting on the basis of any information included in this newsletter without seeking appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient's state. The content of this newsletter contains general information and may not reflect current legal developments. The Firm disclaims all liability in respect to actions taken or not taken based on any or all of the contents of this newsletter.

 Client  Advisory

HIPAA Settlement

by Arthur Yermash, Esq.


The U.S. Department of Health and Human Services (HHS) reported a settlement this month with Affinity Health Plan, Inc. for potential violations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Yermash and Security Rules. The seven-figure fine for HIPAA violations resulted from a failure to remove protected health information or "PHI" from the hard drive of a leased photocopier. The $1,215,780 settlement with Affinity Health Plan, Inc., a not-for-profit managed care plan serving the New York metropolitan area, resulted from their failure to erase the PHI of up to 344,579 individuals when it returned multiple photocopiers to a leasing agent.

Affinity filed a breach report with the HHS Office for Civil Rights (OCR) on April 15, 2010, as required by the Health Information Technology for Economic and Clinical Health, or HITECH Act. The HITECH Breach Notification Rule requires HIPAA-covered entities to notify HHS of a breach of unsecured protected health information. CBS had purchased a photocopier previously leased by Affinity and had notified Affinity as part of its investigatory report that the copier that Affinity had used contained confidential medical information on the hard drive.

On May 19, 2010, in response to Affinity's report, OCR initiated its investigation into Affinity's compliance with the Privacy, Security, and Breach Notification Rules.


To read more click here >>


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When in Doubt, Don't Throw it Out:
A Spoliation Primer
by Scott D. Middleton, Esq.

With increasing technology, the responsibilities regarding the protection of evidence have become more and more burdensome. This is true not only with respect to electronically stored data but evidence of all kinds. Middleton

"Spoliation refers to the destruction or material alteration of evidence or to the failure to preserve property for another's use as evidence in a pending or reasonably foreseeable litigation."   Silvestri v. General Motors. The penalty for failing to properly maintain this evidence can be severe.

When does the duty to preserve material evidence arise? The duty comes about not only during litigation, but even extends to before the litigation begins when a party should reasonably know that the evidence may be relevant to anticipated litigation. The duty applies whether you are plaintiff or a defendant.

For example, in a product liability action arising from a vehicle collision, even where a vehicle is not owned by the plaintiff, the plaintiff has an obligation to notify the manufacturer of when and where the vehicle will be available for inspection prior to its repair or destruction.

To read more click here >>


Negotiating Update

Negotiation Trends: Salary Disclosure
by Joseph N. Campolo, Esq.

Have you ever revealed how much you earn to coworkers? Your answer to that question may depend on your age.

The September issue of Harvard Law School's Program on Negotiation newsletter discusses the trend of openness Campolo3 about wages between coworkers and how it may be affecting job negotiations.

Comparing salaries has long been a social taboo in the United States, but members of the millennial generation -- people born in the 1980s and 1990s -- are changing that, according to Kevin Hallock, director of Cornell University's Institute for Compensation Studies.

According to a recent Wall Street Journal article, when 25-year-old Dustin Zick was preparing to leave his job with an online retailer, he compared salaries with five or six co-workers. Several of the coworkers strategized about salaries they hoped to attain and how they might negotiate for them. The discussions helped Zick meet his target salary at his next job.

Accustomed to sharing minute details of their lives on Facebook and Twitter, Millennials appear to be carrying that penchant for self-disclosure into their work lives. Websites such as Glassdoor.com, where people can post their salaries and other information about their jobs, are spurring this trend. That may be bad news for employers, who see value in encouraging employees to keep mum about their salaries.

To read more click here >>


Intellectual Property Update 

Cease and Desist Letter Imposes Reasonable Remedial Measures
by Eryn Y. Truong, Esq.
According to a recent decision, recipients of cease and desist letters should do more than perform cursory remedial measures.

Consistent with similar situations in the U.S. Court of Appeals for the Seventh, Ninth and Second Circuits, the Deblois Sixth Circuit affirmed liability of a flea market operator for contributory trademark infringement for failure to stop the sale of counterfeit goods at the market despite numerous warnings. Coach Inc. v. Frederick Goodfellow, 717 F.3d 798 (6th Cir. 2013).

Plaintiffs, Coach, Inc. and Coach Services, Inc., who design and sell the famous Coach handbags, filed suit under the Lanham Act against Defendant, Frederick Goodfellow, who owned and operated a flea market in the Memphis area. After Goodfellow failed to take action in response to letters from Coach and the local district attorney informing him that counterfeit sales of Coach products were occurring at the flea market, Coach filed suit. In a raid by law enforcement officers, counterfeit Coach products were seized. Goodfellow admitted knowing that vendors were selling counterfeit Coach products, but did not take any effective remedial measures.

The district court granted summary judgment on liability to Coach after Goodfellow failed to respond to Coach's motion for summary judgment. After a jury trial on damages, Coach was awarded just over $5 million dollars in damages based upon willful infringement of 21 of Coach's marks. The district court also awarded Coach attorneys' fees and costs, finding the case exceptional based on Goodfellow's failure to litigate liability, and the jury finding of willful infringement.

To read more click here >>

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Wills, Trusts & Estates Update

Will Challenges and How to Avoid One
by Martin Glass, Esq.

When beneficiaries or anyone interested in an estate question the validity of a Will, he or she may make a Will Challenge. A Will Challenge is made through the Surrogate's Court when the Will is offered for probate. The Glass person questioning the validity of the Will must file a claim, or their objections, in court stating why they believe the Will is invalid. The person making the claim is the Objectant. The Objectant must have some evidence or will most likely lose the case.

There are only a certain number of ways that the Objectant can object to the Will. The first is if they are claiming that another Will is in existence that was created after the Will that is being offered for probate. Typically the new Will would revoke the prior Will, and therefore invalidate it.

The other ways is to attack the offered Will itself. There are three ways to do this. The first is to claim that the Will was not executed properly and therefore invalid. When the Will execution is supervised by an attorney, it is presumed to be executed validly and the Objectant must then rebut this presumption. This is an uphill battle. The second way is to claim that the testator, i.e., the person who executed the Will, did not have the prerequisite mental capacity to execute the Will. The third way to object to the Will is to claim that the testator was under undue influence and/or duress at the time the Will was signed.

An estate cannot be settled while a challenge to the Will is being heard in court. All the beneficiaries of the estate must wait to receive the inheritance being passed in the Will until the court decides whether the challenge is justified or the challenge is thrown out of court.

To read more click here >>


Firm News

           Brookhaven Small Business Expo 
We invite you to attend the Brookhaven Small BBAC Logo Business Expo on Thursday September 26th from 5:30 - 8 pm at Brookhaven Town Hall for an evening of networking. 
To learn more click here >>

     UCP of Suffolk Luncheon & Fashion Show 
The United Cerebral Palsy of Suffolk is hosting a Luncheon & Fashion Show at Oheka Castle in Huntington, NY on Thursday, September 26th at 12pm. UCP of Suffolk program participants, family members, committee and Board members will be walking the runway to support UCP of Suffolk and help create life without limits for people with disabilities. 
To learn more click here >>   


           Repp Awarded LIBI Rising Star 2013
We congratulate Alyson Repp, Esq. Repp on being awarded the Long Island Builder's Institute (LIBI) Rising Star Award for 2013. The award recognizes a new member who has been working very diligently for the organization. She was honored at the September 11th LIBI Dinner held at Villa Lombardi's.     

     CM&M to Sponsor LIBN East Meets West Event
CM&M is a proud sponsor of the October 11th LIBN East End event LIBN logo connecting business leaders and elected officials who keep the East End humming with activity all year long. Networking and a trade show will kick off the morning and lead into a panel discussion on the area's economic strength and its thriving business community. Join us for a morning of new contacts and future business relationships.    
To learn more click here >>     

              CAPS 1st Annual 5K Walk/Run
As President of CAPS, firm partner Patrick McCormick, Esq. invites you CAPS Logo2 to join us for the first annual CAPS Stand Up, Don't Stand By 5K Walk/Run on Sunday, October 6, 2013, at Sunken Meadow State Park.  Proceeds from the run will support the CAPS organization and their continued efforts to be Long Island's leading nonprofit dedicated to preventing bullying, child abuse and neglect among school-age children.
To learn more click here >>

                    SEA-LI Oct 23rd Event
As a supporter of the Social Enterprise Alliance of Long Island (SEA-LI), the local affiliate of the nation's leading social entrepreneurism organization, we invite you to attend the first in a new series of live interviews Social Enterprise Alliance with local businesses that use social entrepreneurism to improve their bottom line. The first Inside Social Enterprise interview will take place at the Viscardi Center in Albertson, NY on October 23, 2013 from 8:00AM to 10:30AM and includes a light breakfast. There is no cost to attend the event, which is open to SEA-LI members and non-members.  Radio and Television sports personality Ann Liguori will host the series.
To learn more click here >>


Campolo, Middleton & McCormick, LLP
3340 Veterans Highway, Suite 400
Bohemia, NY 11716
p 631-738-9100 | f 631-738-0659
contact@cmmllp.com | www.cmmllp.com